by ,
    • Basically, where MS has breached Union law. Proceedings can be brought by Comm or other MS, but NOT individual – indiv claim limited to state liability. Aim is to obtain declaration by ECJ that MS failed to fulfil Treaty obligations (declaratory judgment!)
    • Elements:
      1. MS in breach of EU law
      2. Decide if it’s Comm v MS or MS v MS
      3. If it’s Comm v MS: i) procedure administrative phase, judicial phase, ii) declaratory judgment, iii) penalties under art 260 TFEU.
      4. NB: MSs usually reluctant to bring case themselves – try to get Comm to take on issue instead, to avoid political ramifications.


  • Key provisions:


      • Art 17(1) TEU: gives Comm task of ensuring and overseeing application of EU law – monitor MS compliance.
      • Art 258 TFEU: general enforcement procedure
        • Elite diplomatic channel for amicable dispute resolution
        • Allow indivs to complaint to Comm about breaches of EU law
        • ‘objective’ law enforcement tool for Comm – Dentist Airdrie


  • Art 260 TFEU: Comm can request penalty payment if MS fails to comply with previous judgment under art 258 (increasingly used!)
  • 4 stages to the infringement procedure (administrative, then judicial):


      1. Pre-contentious stage: MS has chance to explain position, and reach agreement with Comm. Comm will start off negotiations with the MS’ Permanent Representative
      2. Formal notification: MS gets letter of formal notice from Comm, detailing specific infringement. Allows MS reasonable period to reply/submit observations.
      • ➔ possible further round of discussions
        1. Reasoned opinion: issued by Comm, to which MS must comply within reasonable time.


  • Referral: Comm refers matter to ECJ (has discretion whether to do so – no automatic transfer of jurisdiction to ECJ)
  • ➔ ECJ will give a declaratory judgment (whether MS breached law) – might prescribe interim relief under art 279.


    • NB: under art 259: MSs can initiate action against another – has to bring matter before Comm first (but doesn’t have to contact the other MS), and Comm will deliver reasoned opinion after both MSs have chance to make oral and written submission. Dentist Airdrie
    • ➔ but seems like complainant MS can bring case to ECJ even where Comm thinks there has not been a breach of EU law!
    • ➔ rarely used – political reasons. MSs can also intervene in cases brought by Comm.
      • In Spain v UK, 2000: Spain brought action against UK on UK’s extension of voting rights in EP elections to Gibraltar residents.
      • Hungary v Slovak Republic, 2012: Hungary’s president wanted to travel to village in Slovak, where statue of founding saint of Catholic Church of Hungary was to be unveiled. But visit planned to be on anniversary of Hungary taking over Czech Republic in 1968. Hence Slovak refused permission to enter. Hungary complained to Comm – Comm issued letter of formal notice to Slovak, but Comm didn’t really want to get involved in political issue.
        • Comm in reasoned opinion said it didn’t perceive potential violation of EU law. In any case, said it was justified.
        • Hungary brought case to ECJ. Slovak argued it was matter for public international law, cos talking about foreign head of state wanting to gain access for official reasons as head of state.
        • ECJ rejected this: scope of EU law is for EU to decide! Hungary does not have to pass any further admissibility hurdles. But eventually held Heads of States have to request official permission under public international law – host MS has to be aware and give consent cos of all the immunities etc.


by ,
    • Used where A wishes to challenge, in the course of proceedings initiated for a different reason, the legality of some other measure. Latter measure being challenged indirectly must be a general act.
    • Eg. When challenging a decision of direct and indiv concern, A wishes to raise legality of the Reg on which the decision is based.
      • See Simmenthal for typical case
    • Same grounds of annulment as for annulment.
    • Hence NOT an independent course of action.
      • Time limit for principal action still applies!
      • Must have real connection between principal decision being challenged, and the general measure of which legality is being contested.
    • Cannot be used in proceedings before national court – only in proceedings brought before ECJ under some other Treaty provision (incidental + limited effect)
    • Can only be used to challenge acts of general application (usually Regs/directives made pursuant to arts 289 or 290 TFEU).
    • This is a test of substance! Simmenthal case, 1979:
      • A wanted to use plea of illegality to challenge certain Regs and notices, which formed legal basis of the contested decision.
      • ECJ held that art 277 expresses a general principle conferring upon a party to proceedings the right to challenge validity of previous acts which form the legal basis of the decision which is being attacked, if party was NOT entitled to bring direction action against those acts.
      • Hence, has to include acts which, though not being in form of Reg, still produce similar effects and hence cannot be challenged via direct action (too general) – need a wide interpretation of the plea of illegality!
      • Who can use the provision?
        • Available to private parties, UNLESS it is clear that act could have been challenged directly under art 263 (where there was indiv + direct concern).
        • Greater controversy over privileged applicants – Manchester Taxi
          • [Bebr]: NO, since privileged applicants can challenge any binding EU act under art 263, subject to time limit.
          • [Barav]: YES. Irregularities in general act might appear only after relevant implementation measures are adopted, hence after the time limit.
          • ECJ decided that MS can invoke use art 277 even if it did not contest measure within art 263’s time limit (hence agreeing with Barav)
            • Textual analysis: art 277 refers to “any party”
            • There may be good reasons why MSs did not challenge act directly within time limit!

Near revolution ensued

by ,
  • Then decide that at start of each year, he would decide all controversies that had arisen among subjects during preceding year. He would accompany decisions with full statement of reasons.  Subjects said, we want to know rules in advance so they could act on them.
  • Rex now knew, no escape from published code declaring rules to be applied in future disputes.  Subjects happy, but then dismayed when saw that code was obscure.
  • Code was withdrawn, Rex put staff of experts on the Task. They clarified things, but only brought to light that it was honeycombed with contradictions. Just look at Dentist Calgary.
  • Again code withdrawn from revision, Rex now losing patience with subjects and their negative attitude. So purged code of contradictions, and stiffened rules: ten years prison for coughing in presence of king. And many other ridiculous laws
  • Near revolution ensued. “To command what cannot be done is not to make law; it is to unmake law, for a command that cannot  be obeyed serves no  end but confusion, fear and chaos”.
  • Code withdrawn, again revision, so that any impossibility reversed to make possible. To accomplish this, every part of code had to be substantially rewritten. But final result was clear and consistent in itself.
  • But because so much had been changing, as soon as new code appeared, and became legally effective, subjected to string of amendments.  Popular discontent mounted, “A law that changes every day is worse than no law at all.”
  • But pace of amendment began to reduce. But rex felt much bad things happened because of bad advice from experts. – so reassume judicial power in his own person.
  • This time he was deft, apt, and confident to distinguish own decisions on principled basis.
  • But soon, when reread judgments, saw no correlation between judgments and the code they purported to apply.
  • Leading citizens began to hold private meetings to discuss what measures short of revolt can be taken, and then Rex suddenly died.
  • Rex II decided to take powers of government away from lawyers and place them in hands of psychiatrists and experts in public relations so that people would be happy.


Time Limit for Questionnaires

by ,

Q if late in the day can be served within 21 days of the IT1 to protect the right to claim. For additional information, check out Notary public for London

Procedural steps for claim

1 Qs to e/er to get info back

2 IT1 before 3 month time limit

Failure to complete Q by e/er

If e/er fails to complete Q or gives vague answers the ET will assume discrimination

took place by taking an ADVERSE INFERENCE. – ie, you have the relevant info but

chose not to supply it suggesting you have something to hide

Info to put in Q

1 Manner of interview of each applicant

2 Why was X selected rather than client

3 Length of interview for each applicant

4 Topics discussed – ie, qualifications, experience,

5 Any notes made by e/er

6 Was X already known to the e/er (if yes and that’s why he was selected it’s

NOT discrimination)

7 ANYTHING else which is sensible which helps to try and prove D

Indirect Discrimination


 Harder to detect

 Basically, it’s the e/er asking all e/ees to do something but it’s accidentally to

the detriment of one group (race, gender)

 Definition: ‘Gender neutral provision, criterion or practice which would be to

the detriment of a considerably larger proportion of one sex/race.’

 Impacted sex discrimination especially with part time work – discriminates

against more women than men, due to child birth etc.

 EVIDENCE – get stats, speak to workmates and get their opinion, consider

going nationwide if there isn’t enough info from one place of work – need to

be funded by applicant though !

 You can still have this type of claim while V is still working for the same e/er

 Defence is justification. IE, being justified fir business needs such as having

to have small hands to paint bone china

 It is wide definition, so work out pool of people for comparison, take the

larger proportion and see if they are discriminated against. Pool for

comparison and statistical differences, then may be able to use expert or

sociological evidence to refine results. It will be something that affects

everyone but impacts one group more than the other.

 FOR EXAM – ALWAYS check whether V has left the job. If he hasn’t it’s

just D, but if he has it could be UD, WD, constructive


by ,

The majority of the principles relevant to sex D also apply to Race D unless it states


Employers may be in breach if discriminates against a person on grounds of:

 Sex or marital status

 Gender reassignment

 Race or ethnic origin

 Disability

 Trade union membership

 Part time work

From Dec 2003 this list will include religion, belief and sexual orientation.

4 types of discrimination: direct, indirect harassment and victimisation, discrimination

is not, in itself unlawful, it must be accompanied by an unlawful act.

Exam Question Method

 Is it an unlawful type of discrimination?

 Is there an unlawful act e.g. on recruitment, terms, dismissal, subjection to a detriment? – Seek guidance from abogados de accidentes de auto

 Is it direct or indirect or victimisation?

 Is the employer actually or vicariously liable?

Direct discrimination

(Sex Discrimination Act 1975)

s1= women s2 = men s2A = gender re-assignment

s3 = married persons

Question to Ask:

 Has the employee been treated differently and less favourably because of her


o Have to differentiate between bad behaviour and different behaviour.

If employer treats everyone badly then it may not be discriminatory.

Try comparing against someone who is in the same position as the


o There has to be causation ie because of sex, race etc.

 No defence (beyond Genuine Occupational Qualification RB 145), motive

is irrelevant. GOQ covers occupations like authentic actors, male father

xmas’s etc where you are ok to discriminate.

 Burden of proof – applicant to prove behaviour was because of sex, race etc.

Applicant has to prove the different behaviour, Respondent to rebut

presumptions. Court must now infer presumption of discrim if there is a hint

of it. Ask who got the job instead, someone better qualified or was it due to


sex/race ? If it was due to sex/race, the e/er is stuffed as there is no defence to

direct D

 Questionnaires – filled in by applicant. If employer does not respond or takes

a log time then inferences can be drawn. Vital for employers to reply.

 Time limits – have 3 months from act complained of to bring action and get

the IT1 filed. Can get extensions if continuing acts etc, may need preliminary

hearing to see if fit time limit.

Example = Ace Mini Cars – Ace refused to hire a female black cab driver

– worried about her safety at night

– ET said motive irrelevant, she was treated unfairly

– Cant have less favourable treatment

– you have to get evidence re DD as e/ers wont readily

admit it

– get historical background re qualifications, experience

to see whether applying for the job was realistic

– see how the interview went by sending a Q to the e/er

for more info

– client may be able to tell you who the other applicants

were so you may be able to speak to them


by ,
  • Did the Nazis Have Law? Check out the script from Abogados de accidentes 
    • Legal pragmatism is sceptical because it rejects assumption that past decisions provide rights to future ones. Some claim that due to this there is no law at all, and some claim that in some countries, although leg and judiciary exists, too wicked to be law.  – this makes sense under interpretive theory, because those practices in wicked society yield no interp that can have any justifying power at all.
    • Semantic: say we had law, but very bad law. This fact about linguistic practice argues for positivism, the axiom being that the existence of law is independent of the value of that law.
    • If useful theories of law not semantic but interpretive, then problem of immoral legal nazi system has diff character. Why? Because interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong. No reason to expect abstract conception to fit foreign legal systems who developed in different ways and reflect different ideologies.
    • Doesn’t follow if US lawyer doesn’t find in Nazi law one feature he has in US law that he must deny that Nazis had law. (would be like the stages of courtesy…Nazi law on different part of continuum, nazi law is like one strand in the rope). (law in preinterpretive sense)
    • Nice thing is, with interp, not so worried about black white q was it law, we understand and can see both.


  • The Flexibility of Legal Language
    • Semantic theory like positivism denies us to use ‘law’ in flexible way, letting it depend on context or point. Doesn’t mean we can’t sometimes used “positivist” formulation, if it is preferable, but shouldn’t limit ourself to that language!!**
    • Context sensitivity even more important when question in play is sharper, more practical than just classification of nazi law, e.g., how foreign judge Siegfried decides hard case. This requires not just general comparison, but independent interpretation of that system in some detail. We might arrive at conclusion that interpretive attitude is wholly inappropriate there, that practice can never provide any justification for stat coercion.   We might then say that Siegfried should ignore legislation and precedent altogether.
      • Point: nothing in mere fact that his nation has law in pre-interp sense provides any litigant with any right to win what he seeks in its courts.
    • Then we search further, and see not true, something in history of legal practices of Siegfried’s community that we think justifies some claims of legal right by some litigants (but entire law still shit).
    • Now imagine more complex e.g., suppose these are hard cases (jew wants remedy only given to aryans). New difficulty: we would just get by hard cases by looking what decision flows from best interp. We can give of legal process as whole. But cannot do this here, whole system too wicked —- we must ask which interp. Someone like siegfried, who likes his system, would put countries legal practices in what we believe would be their least bad light.
    • Now what if we must ask not how he SHOULD but how he probably WILL decide case? Now we must interpret from fully within Siegfrieds shoes.  We can do that, and then declare that because so shit not really law at all. But we omit that, because not relevant.
    • Next shift: say we discover that part of our own law is immoral. Don’t the legal practices, though morally infirm still generate weak political rights in those who have relied on them? Or do they not generate any rights at all? Could say he may have to disregard law or that there is no law, lingistic distinctino not important, the point is.
    • So, another relic from semantic times. They take all the various above questions we distinguished, concerning wickedness or deficiency of instances of what is law in pre-interpretive sense as THE SAME QUESTION. — namely the semantic Q whether the linguistic rules we share for applying “law” include or exclude such legal systems. Thi sis fake question as we do not share any rules of the kind it assumes. “It disarms us by withdrawing the subtle and context sensitive distinction the right language of law provides.
      • The question of wicked legal system is not one q but many q and all arise at level where conceptions compete!

Harris Legal Philosophies, Ch.14:

by ,
  • Judges often take into account what the law ought to be in assessing whether X is a correct interpretation e.g. “if that interpretation is correct then Y must be true which would be unfair/illogical etc”.
  • Dworkin says law isn’t something we give information about: it is something we argue about: Discovery of law requires “constructive interpretation” i.e. the discovery of law involves finding the morally truest statements about the rights of citizens which will fit the legal materials. This is his “rights thesis”. NB if true then we cannot complain about result based reasoning or the ensuing legal uncertainty.
  • Dworkin says principles are legal and bind judges- see week 1 reading. This attacks the idea of law as a system of rules only. Principles are different from rules since rules are either “all or nothing” (2 conflicting rules cannot both exist) whereas principles “have a dimension of weight”.
  • Hart’s postscript argues that principles can enter law but only when validated by a superior rule e.g. the rule of recognition. He also refutes that principles and rules differ in logical type: he says the difference is one of degree: rules simply have more conclusive force but, like principles, can be overridden.
  • Dworkin denied the positive solution to where law runs out or “hard cases” (that judges have a strong discretion to make law) and instead says that judges have no discretion: they are bound by principles.
  • The correct constructive interpretation will depend on which has the closes fit with the data available and has political merit. Therefore law is interpreted in a moral way.
  • How is state coercion to be justified? Three possible answers: Conventionalism (see week 1 reading); Legal pragmatism; or “law as integrity” (Dworkin’s answer).
    • Conventionalism is bad as there often are no clear social conventions guiding the application of law and when this is the case conventionalism provides no justification for depriving people of their liberty, property etc. For Dworkin, positivism = conventionalism.
    • Legal Pragmatism says that there are no just grounds for state force. Since law = justified coercion, there is no law, but merely a fiction that certain provisions create legal consequences on pragmatic grounds. In so doing, the political pragmatist favours whatever political goals he considers best. Dworkin rejects this- judges and lawyers are not simply making up rules.
    • Law as integrity says that coercion is justified where the community exhibits the virtue of integrity i.e. so long as the community has a well thought out system of values it has integrity. Dworkin says this explains why past political decisions (taking effect in statute or precedent) still bind. This explains legal controversy: disputes are not merely about the applicable social conventions, but what would show the community’s treatment of its subjects in the best light i.e. law = the best politics that fits the legal materials.
  • Dworkin says the best politics (and that which therefore is used by the courts etc) is that of “fraternity” i.e. shared responsibility for actions, concern for all equally etc. This standard of integrity turns community force into law. Thus there is a fundamental right to be given equal concern in the construction of law, which means giving everyone basic rights.
  • Dworkin says that either positivists do believe in interpretation but in a value free way (conventionalism, which he claims is false) OR deny the need for an interpretative attitude because they say we know what law is by looking at the way ordinary people use the word “law”. If it’s the second, lawyers who have a dispute about the law are really arguing purely about linguistic usage, which would be absurd. Harris says the semantic sting argument is bizarre: none of the positivists claim law is only used in one sense. How positivists like Hart would apply the law is by seeing whether it fits their model e.g. complies with RoR etc, NOT whether a rule can be defined as a law in accordance with ordinary use of language.
  • Hart rejected Dworkin’s starting point (that law is primarily coercion- only Kelsen said this).
  • Harris asks: If a legal system can only exists once it passes a threshold of morality or “integrity”, how many legal systems in the world really are there? Dworkin doesn’t say.
  • Interpretation and Adjudication: Remember that Dworkin says the correct interpretation of the law is the one with the greatest political merit which also fits. The “political merit” is the substantive part and can be broken down into “justice”, “fairness” and “procedural due process”. Justice = right and goal of equal concern and respect for each citizen that the ideal legislator should possess. Procedural Due Process = moral requirement to abide by previously announced legislative choices i.e. don’t upset expected outcomes (what about overruling precedents? Also the “fit” requirement deals with this part- this shows the “substantive”-“formal/fit” distinction to be false since both parts are substantive. Thus, on procedural due process, the best fit IS necessarily the most substantively good). “Fairness” = what popular opinion demands.
  • Principles are propositions that describe rights, whereas policies are propositions that describe goals. Rights are principles, not policies, since it does not describe a political goal as policies do; rather it is an assumed backdrop. For example, a right has a “threshold weight” against a collective goal (Why couldn’t these just be competing policies?). Dworkin says the law’s job is to adjudicate between the rights of the parties before him, leaving collective goals/consequences i.e. policies, to the legislature. Supported by Lord Scarman in McLoughlin v O’Brian. Though in this case Lord ED denied this saying that judges have always taken policy factors into consideration when making the law.
  • Dworkin says that it is better that judicial innovation should be regarded as principle not policy because (1) it means he is deciding between the parties who has the better right, whereas judicial legislation based on policy would be a de facto retrospective piece of legislation, which is unfair for lack of possibility of compliance; and (2) if merely deciding principle it does not matter that judges may not have as good resources as parliament to assess the total impact of their judicial legislation. NB these do not show that judges DO operate by looking at principle rather than policy, as Dworkin contends, but merely that they ought to. Harris says the first (and main) argument is bad as the determination of who wins in a set of circumstances where the law runs out still has a retrospective effect, since the losing party could not have complied with the rules as they had not yet come into existence i.e. it is still unfair.


Hart The Concept of Law, Ch. 7 and Postscript:

by ,
  • Sometimes cases are indeterminate i.e. the law is “open textured” (hard cases). Obviously there must be discretion in such cases because “we are men, not gods” and therefore cannot determine the outcome perfectly in uncertain cases. All legal systems have a tension between the need for certainty and the need to leave the law open whether for fairness or for future development. The courts have a “role producing function” in uncertain cases. Rule scepticism is therefore valid in hard cases (Dworkin reject this).
  • Hart refutes (in postscript) the semantic sting argument deployed by Dworkin. He says that he never suggested all judges had one conception of what law is, merely that they share a belief in what criteria need to be fulfilled for it to be applied. He never claimed that the RoR is used to say what a law “is”.
  • Hart also says that his theory is capable of incorporating moral criteria or principles within the rule of recognition, so that he is NOT a “plain fact positivist” as Dworkin claims (For objections to Hart’s soft positivism concessions see Raz week 2 reading).
  • Hart denies that his positivism = what Dworkin terms conventionalism. Conventionalism’s point according to Dworkin is to justify coercion, whereas Hart does not claim this. Hart says that coercion is used when the law’s primary methods (promulgation of laws etc) breaks down, so that he certainly does not consider the law’s aim.
  • Hart rejects Dworkin’s claim that soft positivism is inconsistent with the positivist aim to provide certain, value-free criteria for identifying law (Dworkin is right here- see Raz week 2 notes). Hart says positivism is not minded to maintain absolute certainty but can make concessions, so that the courts can make an informed decision in hard cases.
  • Hart says the difference between rules and principles is not so profound- it is a matter of degree of conclusiveness. In Riggs v Palmer, which Dworkin often cites (man murdering his grandfather to get the will) a principle (that a man shouldn’t profit from his own wrongdoing) overcame contradictory statutory rules on wills, demonstrating how the distinction between rules and principles is not so sharp as Dworkin claims. Thus principles can be legally binding if recognised as such by RoR and Hart concedes that he was wrong not to consider principles initially. Thus he goes on to make a half-concession: That laws can include moral standards but do not have to in order to be valid.
  • Most importantly, Hart denies that positivists like himself set out to show law in its best light. They seek to provide general information about social institutions and to explain how claims concerning validity, obligations, rights, etc figure within such institutions. We need, Hart maintains, a clear understanding of these matters as a precursor to evaluative theories.
  • In fact, he says, we can make propositions about the function of law without committing ourselves as to whether these are valuable functions. Arguments for positivism are backed up by professional practice – lawyers can convey information about law without apparently committing themselves on questions of political morality – they may even describe the laws of past, foreign or unjust legal systems.