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This idea revolves around the notion of whether or not the EU is a constitutional entity; is
it a mere fiscal system of something along the lines of national law?
Purely economic:
EEC:
Common market (same as above, plus free movement of goods, labour, services
and capital)
EU and beyond:
The formation of the EU and its predecessors was arguably a reaction to the economic
devastation that ensued following WW2. In the EUs initial founding as the EEC in 1957,
the aim was to brings about peace in Europe through stability. Envisaged that through
economic stability, political stability would flow; a collaborative measure brought about
through need for peace.
In regard to how far the EU has departed from the original model, it has arguably moved
from the initial economic expansion. With the enlargement of territory and the aims of
the EU, the nature of EU itself has come into question, demonstrating how the nature of
the EU has always been changing since its inception
The EEC did more than merely liberalise the tariffs between member states and
was a means of generating growth through movement without barriers. However in
1957 the EEC only regarded workers as economic actors.
The treaties:
Maastricht Treaty 1992 established the EU and renamed the EEC as EC pillar
within the EU
The constitutional treaty of 2004 was not ratified however, but still showed that it
was not enough for the treaty to be agreed and it must also be ratified by the
people.
In 2007 the Lisbon treaty was ratified and came into force on the 1st December
2009; established TFEU, TEU and Charter.
Main debate is how far one wants the extension of European integration.
The current position
The EU is treaty-based and since the 1st December 2009, the 3 constituent elements are:
The TFEU: the treaty on the functioning of the European Union, which essentially
merges the previous EC treaty and the EU rules on freedom, security and justice
The TEU: the treaty on European Union which, in general terms, is the previous EU
Treaty and the rules on the common foreign and security policy
The Charter: the EU Charter on Fundamental Rights (given the same legal value
as the treaties through Article 6 of the TEU, but not incorporated into them).
Prior to the Lisbon Treaty this charter wasnt legally binding
o
Whilst it may not have been included in the treaty, it was nevertheless
legally binding. Gordon Brown was misleading when he said it wasnt
included, but technically he was correct
How we got here: the position immediately pre-Lisbon
The pillar structure was established in 1993 through the Maastricht Treaty
European Union
(2)
Common foreign
and security policy
(3)
Police and judicial
Cooperation in
Criminal matters
For this period of arrangement (1993 Lisbon), the pillar acted as support for the
overarching concept of the EU
Why might member states have wanted such a complicated-looking scheme? And why
dismantle?
Pillar (1) more integrated in political and legal terms as it provides for
supranational decision-making, review by courts, individual rights, etc
However the CFSP established through pillar (2) still has special rules
Despite this, some member states have nevertheless secured so-called optouts (and opt-ins) to some controversial areas of activity; eg the protocol
for the UK, Czech republic and Poland in respect to aspects of the Charter
Getting to Lisbon:
Last-minute accommodation of Czech Rep alongside Poland and UK optouts re parts of Charter of Fundamental Rights
Amends the 1957 EEC treaty and the later ones to form todays position
Conclusion
The EU is a work in progress and isnt a concluded project; no set point for EU to
reach
Legal changes reflect pace and shape of progress and direction of travel; Lisbon
brought stability
It has no inherent powers but it does have legal personality, competences, political
and legal institutions and decision-making processes
The treaties must be consulted to determine if the EU has the power to act in a particular
area and how it can act.
EU is a treaty based entity and is therefore bound by the ambits of the treaties
It can only carry out functions allowed by the treaties; has no inherent powers or
resemblance to the functions of a state
(1) TEU:
Essence of the TEU was in the creation of a new organisation (The EU) which was
founded on the principle of legally constituted communities and political
cooperation
(2) TFEU:
These treaty arrangement were put into place through the Lisbon treaty which was
essentially an amendment to the founding treaty; the three instruments above are the
major sources of the EUs legal base and encapsulate the major principles
They set the parameters within which the EU bodies can act
However, it is the ECJ which has the exclusive power to determine what the
treaties mean
EU as a legal construct
As the EU draws its powers from the treaties themselves, it must be remembered
that the treaties are very loosely drafted and this allows for flexibility; can also be
seen as highly problematic
Article 1 of the TEU says this treaty marks a new stage in the process of creating an ever
closer union among the peoples of Europe. This answers the question as to whether the
EU is meant to be a union of states or citizens.
The fact PEOPLES of Europe was inserted was to avoid the notion of a super state
Reflects diversity
No notion of a SINGLE European people, but has the objective of creating a space
where there is an opening up between the various PEOPLES which make up Europe
According to Article 2 of the TEU, the union is founded on the values of respect for
human dignity, freedom, democracy, equality, the rule of law and respect for human
rights, including the rights of persons belonging to minorities. These values are common to
the member states in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail.
Tillotson was of the opinion that it entailed the acceptance of the existing
body of EC law, which includes the contents of the Treaties, including
Maastricht, all legislation adopted in implementation of the Treaties, all
adopted declarations and resolutions and all international agreements.
General principle is that the EU has attributed competence in the sense that the treaties
confer competence upon it:
Such competences are broad in their outreach as there are few excluded areas of
activity contained in Article 3 TEU
Articles 3-6 of the TFEU (exclusive and shared competences) are attempts by
member states to limit the amount of influence the EU can exert upon the will of
individual member states
The ECJ has a tendency to put the emphasis on the objectives of a measure
to determine its legal basis
The correct legal base (ie how relevant decisions are to be made, by which
institutions and using which procedure)
Article 4 of the TFEU makes the point that the union shall share competence with
the member states where the treaties confer on it a competence which does not
relate to the categories referred to in Articles 3 and 6 TFEU which deal with
exclusive competence
Even with the new categories in place, it still may fall to the court to determine whether
a particular act falls within the category claimed by an EU institution or member state.
Because of the courts exclusive role of interpretation the boundaries must be marked
clearly and their functions must be clearly defined. Therefore the approach of the ECJ
must be examined:
No EU power, as illustrated in the Tobacco Advertising case. This is the only case
where the court has ever annulled an EU measure for having no treaty basis.
o
Art 95 EC [now Art 114 TFEU] authorises harmonising measures for the
establishment and functioning of the internal market
The courts reasoning in the above case was that the sidestep wasnt viable as it
nevertheless achieved the same objective which was prohibited. The real reason
was clearly public health protection, but it was expressly excluded by the treaty.
o
If there was a specific object which was tried to be banned then it would
succeed under the single market argument, but a backdoor general
legislative capacity couldnt suffice
Lack of any legal base under the treaty to ban tobacco advertising; must be
a legal treaty base to legitimise the actions
Unusual to find something beyond the treatys power, but the tobacco advertising
case demonstrates a rule of law approach in the sense that even the EU is not
beyond the ambit of the powers bestowed upon them
Makes a significant constitutional point that as there was no legal base for such
powers to be exerted, they had to be curbed
The Grogan case concerned Irish constitutional prohibition against abortion and
providing info about abortion
In the case, G and others supplied women with information about where to
obtain abortions in UK
Anaction was brought against Grogan on the terms that they undermined
the Irish constitution, and they proceeded to invoke the euro defence in
that they argued it was their right under the directives of the EU to provide
a service in the form of such information
Information = service
Abortion = service
Info service
AG Jacobs:
o
civiseuropeus sum
The ECJ:
o
Essentially felt only the business was moved, and EU law would only protect
his interests if there was financial loss
Summary
There are indeed limits to the treaties! Limits often occur because the court (as
interpreter of scope of the Treaties) places them there to safeguard against
potential ramifications
MSS trying to curtail Courts scope for interpretation by Lisbon settlement typology
of competences in Arts 3-6 TFEU
EU is about the union of citizens and no longer (if ever) was it just a club
for member states; evolution of the EU
The above article also listed 7 institutions of the EU, but 5 are of primary
significance
1) European Parliament
2) Council of the EU
3) European Council
4) European Commission
5) Court of Justice of the EU
o
Supranational/intergovernmental character
The institutions work together, interact and have some shared functions so
as to uphold this idea of a balance of power
Asks if all the institutions are involved; if they are then how
democratic is their nature?
(1) The commission shall promote the general interest of the union and take
appropriate initiatives to that end. It shall ensure the application of the treaties
and of measures adopted by the institutions pursuant to them. It shall oversee the
application of union law under the control of the Court of Justice. It shall execute
the budget and manage programmes. It shall exercise coordinating, executive and
management functions, as laid down in the treaties.
(2) Union legislative acts may only be adopted on the basis of a commission
proposal, except where the treaties otherwise provide.
o
(8) Makes clear that the commission, as a body, is responsible to the European
Parliament
o
Whilst being the most multi-faceted of the institutions, it also has the most functions.
Since the Lisbon Treaty, its power had arguably diminished to a certain extent
The commission also develops the overall legislative plan for any single year as well
as the development of general policy strategies
They have limited unilateral decision-making (eg fining companies for breaches of
competition law)
Commission are the Guardian of Treaties (eg bring enforcement actions against
MSS in the Court of Justice)
o
The commission brings actions against member states for breaching treaties
and is the institution with the power to take matters to court
The commission is made up of one commissioner from each member state, but there
arent representatives of the member states as they operate independently
The Irish for example voted in favour of the Lisbon treaty the second time round on
the basis that they would have a commissioner, regardless of the fact that such a
commissioner was not their representative
Appointments last for 5 years, and the current commission is for 2009-14. It was
originally agreed that after 2014, the number of commissioners would be reduced
below that of the Member states. However, the European Council in pre-Lisbon
agreed that once the Lisbon Treaty took effect it would secure the maintenance of
the system of the commission having one national from each member state. This in
effect was part of the price of Ireland agreeing to hold a second referendum on
Lisbon
The president of the commission plays a very important role as it is he who lay down the
guidelines within which the commission is to work, and decides on the internal
organisation of the commission and fire individual commissioners. Lisbon treaty provides
for the president to be indirectly elected meaning they must essentially secure the
support of the majority of the European Parliament
Guidelines as to the working of the commission are laid down by the president
(Barroso)
Plays a vital role in the shaping of overall commission policy, negotiations with the
Council of the European Union and determining the future direction of the EU
The Council of the EU
Previously known as the Council of Minister, this is the forum which consists of government
representatives from the member states at ministerial level meeting in different
configurations according to policy areas
The GAC deals with matters affecting more than one EU policy and prepares
the agenda for the European Council; ministers are sent to such meetings
according to the issue at hand
Foreign Affairs Council for external actions, chaired by High Rep for FA
o
The Foreign affairs council deals with external relations and matters
pertaining to common, foreign and security policy.
The Council is intensely political, and also occupies the key co-legislator role with the
European Parliament under the ordinary legislative procedure of Article 294 TEU.
Under Article 16(1) TEU, The Council shall, jointly with the European Parliament,
exercise legislative and budgetary functions. It shall carry out policy-making and
coordinating functions as laid down in the Treaties.
In terms of the composition of The Council, Article 16(2) of the TEU states how a
representative of each member state who is of ministerial level will make up such a
council
This factor demonstrates how the council does, and always has, represented
national interests
The presidency of the Council rotates among the member states on a six-monthly
basis. Currently it is Cyprus.
Council meetings (like the GAC and FAC above) are arranged on the basis of subject
matter with different ministers attending from the member states.
Whilst it is indeed the commission which takes the first step in recommending and
proposing the legislation which is to be enacted, it is the Council of the EU which enact
such recommendations
The council can also delegate power to the commission thus enabling them to pass
further regulations within a particular area
Council must vote approval on virtually all commission legislative initiatives before
they become law; depending on the treaty basis voting is done by means of
unanimity, qualified majority vote (QMV) or simple majority.
European Council
Not to be confused with The Council of the EU. This is a recognised EU institution which
began as informal meetings between Heads of Government to thrash out the thorniest
dilemmas of EU policy. Existed since the 1960s but the Lisbon changed enhanced the
formal position and legal base of the European Council
Made up of Heads of Govt plus its own President and Commission President
(Barroso)
In cases revolving around tricky questions, such as budgeting issues, they can only
be resolved through the heads of government attending meetings; hence the
recognition of the European Council was a long time coming
The Council has no legislative powers but is entrusted with defining general political
objectives and directions of the EU
Nevertheless despite lacking any such legislative powers, if the heads of member
states want a certain outcome then the commission will have no choice but to
enact their will
It also has a permanent and stable president who each have terms of 2 and a half
years, renewable once
Shall provide the Union with the necessary impetus for its development.
European Council plays a fundamental role in the integration of member states, and whilst
shaping EU policy also sets out the ambits within which other institutions can operate
The role has evolved; initially looked upon with disdain and suspicion by members
of the Commission however the Council now has the means by which the
commission can secure broad agreement from member states on a number of its
initiatives
The fact that the European Council is now recognised leads to the question being asked as
to whether or not other institutions are undermined as a result; the political make up of
the council means the legislative process can be influenced.
European Council shows how Lisbon was a very euro-sceptic treaty. The recognition
of sovereignty and the express authority given to the European Council shows how
member states actually run the scene as opposed to the EU as a united and
integrated entity.
Must also be noted that Article 263 TFEU gives Court of Justice power to review decisions
of the European Council intended to produce legal effects regarding 3rd parties
The European Parliament
This is the only directly elected body of the EU, adding a certain degree of democracy and
legitimacy to the institutions.
Nevertheless its legitimacy are still scrutinised on the basis of low turnouts in MEP
elections, the lack of pan-European political parties, and whether it plays same
role as a national parliament
In formal terms, the EP has a central role in the institutional framework of the EU as it is a
co-legislator with the Council under ordinary legislative procedure.
Article 14(1) TEU says The European Parliament shall, jointly with the Council,
exercise legislative and budgetary functions. It shall exercise functions of political
control and consultation as laid down in the Treaties. It shall elect the President of
the Commission.
o
Also has the power to force resignation of Commission as an entire body, by way of
a two-thirds vote
But post-Lisbon more use of ordinary legislative procedure and more use of
QMV in Council
The use of the OLP means that a proposal from the commission goes to the
European Parliament and Council of the EU for amendment and approval
with a joint conciliation committee to try and resolve conflict.
Key stages are set out in Article 294 of the TFEU which described the OLP as
default procedure:
1) Commission proposal
2) Co-decision by Council and European Parliament
3) Conciliation committee to deal with lack of agreement over amendments
Under Article 19 TEU, the Court of Justice shall ensure that in the interpretation and
application of the Treaties the law is observed. Member states shall provide remedies
sufficient to ensure effective legal protection in the fields covered by Union law.
The composition of the Court (which sits in Luxembourg):
AG is a full member of the court and participates at the oral stage of the
judicial hearing
Because the court only issues single judgements, the Advocate General sets
out particular issues which should be covered by the court; opinions of the
AG are vital but distinct to the courts
Opinions of the AG arent binding on the court but are very influential
nevertheless; supposed to constitute impartial and independent advice and
will often shed light on a CJEU judgement that is difficult to interpret
Both judges and advocate generals of the CJEU must have independence which is
beyond doubt and have held the highest judicial office in their respective countries
Any member state has a right to appear/intervene in court and if a lot of member states
have turned up it means it is a major issue
Actions for annulment of EU acts/failures to act (Articles 263 and 265 TFEU)
Cases referred by national courts under Article 267 TFEU (preliminary hearings)
o
Provides a vital bridge between national and EU law; cases will always be
sent for interpretation and much of the preliminary decisions are made
through this process
The CJEU examines the whole context within which a provision can be found and gives an
interpretation most likely to further what the court felt the provision sought to achieve.
Article 19(1) TEU goes on to state how the court will ensure that in the interpretation
and application of the treaties the law is observed
Summary
LAW-MAKING IN THE EU
The basic concept is that the EU only acts if the Treaties allow it to; conforming to the
conferral of powers doctrine. As for the actual making of legislation, this is a co-legislative
effort carried out by The Council of Europe and the European Parliament
Legislative Procedures
Post-Lisbon there is a default procedure for law-making known in Article 289 TFEU as the
ordinary legislative procedure, previously known as the co-decision procedure. This
consists of a proposal from the commission which goes to the EP and Council for
amendment/approval as co-legislators, with a joint conciliation committee to try and
resolve conflict.
Institutional relations post-Lisbon:
Winners (As a result of the reconfiguration of the EU through the Lisbon treaty
some institutions were better off):
o
European Council
The fact the European Council was recognised and now has a
platform through which it can voice opinions to the commission who
would have little choice but to enact their will
European Parliament
Court of Justice
Gains jurisdictions
Losers:
o
Commission
Council of EU
Overall, the question is whether or not the EU has given more power back to
individual member states and thus made the EU less supranational. Potentially a
move towards a greater more integrated EU
Framework Agreement on relations between the EP and Commission (see Art 295
TFEU)
In the link you can see how the commission is bound politically to
the EP
The identity problem of the new High Rep for FA (Baroness Ashton)
o
Common view is that Baroness Ashton is working for the Council of the EU as
opposed to the commission
Article 295 authorises a practice that used to happen but now provides it
with a legal basis. The commissions power of initiative has been diluted as
the link demonstrates
Relations are strained between European Council and the council of the EU
as sometimes the Council presidency is held by a smaller state whos will
can be undermined by the council of the EU
Institutions in EU law-making:
Historically been a labyrinth in the sense that there are a vast amount of processes
which need to be undertaken before law is made in the EU. More than one EU
decision-making procedure
o
Existence of different procedures > disputes over which one is the right
one under the Treaties (turf wars)
Article 14(1) of the TEU states how the EU Parliament shall exercise
legislative and budgetary functions jointly with the council of the EU, whilst
Article 16(1) says the exact same from the Council of the EUs point of view.
Articles 289 and 294 of the TFEU demonstrates how the co-decision
procedure is the OLP; consists of the joint adoption by the EU Parliament
and Council of the EU of a regulation, direction or decision on a proposal by
the Commission
Essence of OLP is that the Commission will draft up a proposal and then send it to
the Council of the EU and the EP. Any conflict between Council and the EP will be
eased through a committee trying to reconcile the various amendments
Legally this is genuine co-legislation and both institutions are legal, but politically
however you can see how both institutions are eager to demonstrate a convergence
of interests and want to be seen as being integrated and united in the cause
In terms of the practical operation of the OLP, it has been successful in that it has
accommodated the differing interests through each being given a stake in the
legislative process.
Or, if conciliation committee report has been required, reject this (3rd
reading)
EU Parliament uses its power to veto under Article 294 cautiously and in
moderation; despite the rare use of the veto, the fact is that the EP must
accept the measure if it is to become law
Article 293(1) TFEU requires the council to show unanimity if they want to amend a
commission proposal whereas only a qualified majority is required to accept a EP
amendment
The OLP also enhanced the EPs legitimacy and democratic credentials through
expanding the OLP to new areas.
Turf Wars battles over the correct legal base for EU legislation
It is clearly a fact that the more legislative procedures that exist, the greater the
likelihood that there will be battles over whether the right one has been chosen. Interinstitutional conflict will be manifested politically in numerous ways. Legally however, the
most likely scenario for these conflicts to surface will be over the choice of legal base of
legislation since this will shape the level of participation by each institution.
So essentially, such conflicts are expected:
The more legislative procedures that exist then there will be the inevitable conflict
as to whether the right one has been invoked
Most likely situation for conflict to arise will be over the choice of the legal base of
legislation as this will shape the level of participation by each institution
Therefore the role of the court becomes ever prevalent in the adjudication and
resolution of conflict in such matters. And its criteria when ascertaining the correct
legal base for EU measure in question is
o
If there is dual purpose, one of which is predominant, this ONLY must be the
base
The court adopts objective criteria in the resolution of conflicts and adapts it
according to the issue at hand so as to adjudicate most appropriately; in Case
C-269/97,Commission and EP v Council the court confined them to the objective
meaning of the legislation.
o
Courts answer:
They did so not because of a lack of sympathy for the EU Parliament, but
because they now had new powers conferred upon them the court felt no
need to politically intervene on Parliaments behalf and so didnt follow in
the Titanium Dioxide case
Only rule regarding EU Parliament in Article 215 TFEU is that they should be
informed
E Parl to be informed
Anti-terrorism measures
Proper basis = Art 215 and so the Council was held to be right
Legal acts of the EU
There are explicitly mentioned forms of secondary legislation under Article 288 TFEU, and
are instruments used by the EU and provisions through which EU law is upheld
Regulations:
o
General measures which are directly applicable (ie binding in all MSS
without any further enactment)
Regulations are applied generally and will be binding in its entirety and
directly applicable in all member states; common to think of them as
legislation made by member states themselves. This is also done so as to
save time and ensure the survival of the EU; due to the thousands of
regulations that are enacted by the EU, if they had to separately
incorporate into every individual legal system of member states so as to be
legally effective, the EU would seize to function effectively.
Directives:
o
Leave to the national authorities the choice of form and method as to how
to achieve the desired result
The ends which a member state is required to achieve are set out in
considerable detail
The directive said that the state of knowledge was not such as to enable
the defect to be detected
The UK consumer protection act said state of knowledge not such that a
producer of products of the same description might be expected to have
discovered the defect
MSS Objections to hard law (Regs and Directives); preference for non-binding
soft law
o
For example, seeking models of best practice across member states and
establishing consultive and review mechanisms for their dissemination
Law-making procedures clearer post-Lisbon with OLP and QMV now the default
rules
More supranational? More EP power?
o Turf wars still possible preferably solved by inter-institutional agreement
but otherwise end up before the Court
Court applies objective criteria test
Output of law-making as EU Regulations and Directives, but with increasing use of
soft law in form of negotiated/agreed targets and best practice arrangements.
The EU has competence (power) to adopt policies and legislation only in the
areas specified in the treaties.
Bulk of Subsidiarity questions arise when dealing with issues of shared competences
If both Member states and EU have the power to act, then the question as to which
institution should act is answered in Article 5(3) TEU, through the principle of
Subsidiarity
Under the principle of Subsidiarity, in areas which dont fall within its
exclusive competence, the union shall act only if and in so far as the
objectives of the proposed action cannot be sufficiently achieved by the
member states, either at central level or at regional and local level, but
can rather, by reason of the scale or efforts of the proposed action, be
better achieved at union level.
The Lisbon treaty acknowledged that Subsidiarity should extend across vast
spectrum of decision making questions
o
EU can only act where objectives of the action would be better achieved
through their action; presumption that things should be left to the member
states unless the EU can do it better
Has a strongly moral and religious tradition, much of which emanates from Catholicism. As
a secular political concept it is something which governs relationships between federal
and local level; the core and subsidiary
Basic rule is that decisions should be taken as local a level as possible, such is the
presumption of Subsidiarity
In the specific context of the EU, it was introduced by the Maastricht Treaty. It is said that
there would never have been a treaty if Subsidiarity had not been included in the
Maastricht treaty. As the treaty was a big step in the development of the EU, the fact
Subsidiarity played a crucial role demonstrates its crucial nature
Protocols have the same legal value as treaties and represent what the member
states saw/see the manner in which Subsidiarity should apply; develops the detail
Article 1 of the Protocol: Each [EU] institution shall ensure constant respect of the
principles of Subsidiarity and proportionality
After a provision has been adopted, the question is whether or not a member state
can take action against the EU on the basis that it doesnt comply with notions of
Subsidiarity
Legal question is if the EU do things, whether or not they will be capable of being
undone
Art 8 Protocol: Court of Justice jurisdiction to review EU legislative acts for breach of
Subsidiarity
Article 8 puts into play the role of the CJEU in that they can adjudicate on matters
pertaining to legitimacy and fairness; must be noted that the court has never set
aside an EU act for not complying with Subsidiarity
o
Perhaps this is the case as the court (regarding who is better placed to
make decisions)might feel the decision to be a political one and so should
be left to the political organs of the EU to determine; not their job to
review the actual choice but can merely decide whether or not the body
had the power to act.
Therefore Subsidiarity can be seen as not being suitable legal instrument for undoing an
EU act after it has been passed, especially where it is the case that the court has other
tools with which to review legislation.
Under Article 263 TFEU the CJEU does indeed have the jurisdiction to consider the
infringement of Subsidiarity in actions bought by member states.
Still the case that no EU act has ever been set aside for lack of Subsidiarity alone and the
case law can be used as evidence of the courts lack of engagement
Case C-84/94 UK v Council (Work-Time Directive)set out in war terms the rule that
nobody should work more than 40 hours a week and that everybody should have a
rest day. UK undid the provision; tried to attack it on basis of lack of Subsidiarity
and the court felt it was not in a position to take action as the Council warranted
the provision.
Rest day=Sunday
Court set aside one part of the directive (rest day being Sunday) but for a
different reason; excessive use of power to name Sunday. Breach of
proportionality not Subsidiarity.
Most recent example is Case C-58/08 Vodafone and others v Sec State for
Business(Grand Chamber 8 June 2010)
o
Felt courts should have and could have left retail provisions to member
states
New Protocol
o
With Subsidiarity a big limitation is that the only thing national parliaments can do
is assert their opinions as to why they feel matters should be left to a national
jurisdiction
o
All EU bodies must do is take note and account of national parliaments views
Art 6: Nat Parliaments have 8 weeks to send reasoned opinions why draft
legislation does not comply with Subsidiarity
Nat Parls have 2 votes each (eg in UK one for HC, one for HL)
Under Art 7(2) if a third of national votes are against legislation, the draft
must be reviewed by its initiator (the commission)
Orange card
o
For OLP proposals, Art 7(3) states how a simple majority of natParl votes
will require Commission to produce reasoned opinion response
Picture is created that national parliaments arent making use of their scrutinising
functions:
Eg House of Lords has sent all UK letters (using existing scrutiny cttee
procedures)
Continuing questions:
Nat Parls have (only)acquired scrutiny role; does not change EU institutional
balance in decision-making
Some feel the court must come out of its shell and hold the EU to account
Politics: actual impact at proposal stage? There to make the EU think whilst
providing national parliaments to cast their opinions
Law: not being used as a tool for intense ex post facto judicial review of
legislation. Minimal value as review mechanism
SOURCES OF EU LAW
Primary sources of EU law are the EU treaties as amended:
TEU
TFEU
Protocols
(Charter of Fundamental Rights, which have same legal values as the treaties)
Secondary legislation
The court of Justice has also discovered (by which it is meant they have essentially
invented) through its role as exclusive interpreter of the Treaties, a number of General
Principles of EU law
Done this through its power as interpreter of EU Treaties which are the primary
sources of law
The Court of Justice has always taken the view that EEC/EC/EU law is distinctive
o
International law by large is about law applicable to member states and its
comparably unusual for international law to be exercised by individuals and EU law
is predominantly exercised increasingly by individuals
o
Legal theorists may differ: how many legal systems are there in the EU?
o
Member states find it easier to opt in and out of international treaties than
EU law
Court has never wavered from its position that EU law is unique, however
legal theorists such as Julie Dixon do not share that view as that such an
analysis is correct and advocate the possibility of a plurality of legal
systems
Conflict is rare and national and EU court go out of their way to diffuse
conflicts and come up with a resolution to the conflict
The court has consistently maintained since the outset the uniqueness of
community (now Union) law and its supremacy over conflicting national provisions.
Court gets bolder in its language as development ensues and mentions the essential
signing away of sovereignty regarding adjudicationof EU matters
Court makes strategic decision in this case in that EU law isnt international
law as EU law creates rights for people
Member states courts are bound to apply the legal decisions of the EU on
matters regarding EU
Member states have limited their sovereign rights, albeit within limited
fields, and have therefore created a body of law which binds both their
nationals and themselves
In Simmenthalthe court stated how in the advent of conflict between national and
EU law, EU law will prevail and national courts must set aside any provisions which
conflict
o
This is a neat trick by the CJEU in the sense that national courts must set
aside their own laws. Not claiming jurisdiction but asserting EU supremacy
by imposing an obligation on national courts to conform
It was said how the community treaties established a new legal order for
the benefit of which the states have limited their sovereign rights, in ever
wider fields, and the subjects of which comprise not only member states
but also their nationals
It was stated in Courage v Crehanhow the treaty created its own legal order which
was integrated into the member states
o
Idea to note is that the EU is a legal system within which individuals have
rights
Best way to make treaty work is not to leave it in the hands of member
states but to empower them to assert their rights individually
The joint cases of Kadi and Al Barakaat International Foundation v Council and
Commission arose due to the way in which the EU implemented a UN sanction
which was challenged by the applicant on the basis that it violated his fundamental
rights
o
CJEU upheld Kadis claim stating how whilst the EU was simply trying to
transpose UN sanctions, an individuals human rights were governed by the
human rights provisions protecting an individual in the EU
Court accepts international law but they have the right to challenge
decisions which do not meet their standards of human rights protection
A new European Patents court was proposed to be set up for the whole of Europe
(not just the EU), and this was the matter at hand in Opinion 1/09 On the Draft
Agreement on the European and Community Patents Court, and such a court would
have exclusive rights over patent law and any associated matters
o
CJEU and the courts of member states are held to be the conjunctive
guardians of the legal order of the EU
Court of justice is ensuring that national courts are the guardians of the EU
through binding them into the EU legal system
Establishment of EU remedies
In accordance with well settled case law of the Court of Justice, the Treaties and
the law of the Union have primacy over the law of the Member States under the
conditions laid down by the said case law
Must also be remembered that Art 19 TEU states how Member States shall provide
remedies sufficient to ensure effective legal protection in the fields covered by Union law
National legal systems deal with the reception of EU law through different methods, for
example in the UK this is done through section 2-3 of the European Communities Act 1972
as amended, and this is now restated in European Union Act 2011, part 3 section 18.
This has the effect however, that whenever there is a new treaty reform at EU
level clashes occur leading to litigation
o
German court for example, has a tendency to say that individuals are better
off under their constitution as opposed to EU law
HoLdisapply Act (no power to repeal it), ie Act remains English law
but HoL to disregard it
As a result of this case law, clear you can sue a state which falls short of its treaty
obligation
A major judgment was made in relation to the compatibility of the Lisbon treaty
with German basic law in Gauweiler
o
The Basic Law aims to integrate Germany into the legal community
of peaceful and free states, but does not waive the sovereignty
contained in the last instance in the German constitution...
Justifies its right to rule out EU law in the future, despite finding
that once again the Lisbon treaty is compatible; once again political
motives to appease the domestic population
Polish courts had a lot to say in relation to the 2004 constitutional treaty
Putting pressure on the Court of Justice: a good thing for the EU legal order?
o
Still remains that the CJEU and national supreme courts are eager to avoid
conflict as well, Grogan is a prime example of where a concession was
made for the domestic court by the CJEU; reciprocal relationship whereby
the CJEU reconciled its own view with that of the Irish
Easiest way to kill off EU law is if national courts stopped using it and
stopped sending questions for clarity to the CJEU
Direct effect
1)
The broad definition given to Direct effect is that it refers to provisions of binding EU law
which if found to be sufficiently clear, precise and unconditional, they would be
considered justiciable and can be invoked and relied on by individuals before national
courts
This doctrine endows EU provisions with the characteristic that they may be
enforced by individuals in their national courts
Consistency and legitimacy when creating set of principles not explicitly contained
in the Treaties
o
The ECJ held that treaty articles could on certain conditions have direct effect to
the extent that individuals could rely on them before their national courts and
challenge the actions of their nation for violation of community law
Only the Court as the interpreter of EU law may declare a provision to have direct effect.
The standard test is derived from Van Gend en Loos
Concerned a treaty provision (Art 12 EC (now Art 30 TFEU)) which said there should
be no border taxes between states; negative obligation
A private firm said they should not have to pay such taxes and the AG essentially
said that in terms of an enforcement basis policies are addressed to member states
as opposed to individuals
Court followed the approach that individuals are the beneficiaries of the treaties;
essentially direct effect is the capacity of a provision of EU law to be invoked
before a national court
The ECJ felt that the ratification of the treaty is an acknowledgement that
community law has an authority that it can be relied upon by nationals before their
courts and tribunals; community law was intended to confer rights upon individuals
which were to become part of their legal framework.
It was felt that Article 267 of the TFEU had the idea in mind that parties before
national courts could plead and rely on points of community law; Article 267
supported the notion that individuals could invoke community law so as to
challenge inconsistent national actions
o
The ECJ read the text of the Article in such a way so as to further what it
feels to be an underlying and evolving aim of the community
Unconditional
The case of Defrenne v Sabena concerned equal pay issues and the question was
whether or not an employee could sue her employer on the treaty itself (then
Article 119 EC, now Article 157 TFEU) which stated Each MS shall ensure the
application of the principle that men and women should receive equal pay for
equal work.
o
She and other female cabin crew were paid less than males
Held that the provision is directly effective from the point of the case and
not retrospectively
For example would Article 19 TFEU satisfy VGL criteria for direct effect? It states
the Council, acting unanimously in accordance with a special legislative
procedure and after obtaining the consent of the European Parliament, may take
appropriate action to combat discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation
o
Not all provisions will be treated as directly effective however. Article 4(3) TEU
states Member States shall take any appropriate measureto ensure fulfilment of
the obligations arising out of the Treaties. The Member States shall facilitate the
achievement of the Communitys tasks and refrain from any measure which could
jeopardise the attainment of the Unions objectives.
o
To give direct effect to this provision would mean to give direct effect to all
the obligations contained within
In the case of Van Duyn it was essentially stated how the nature of directives would be
undermined if individuals were not allowed to rely on them before their national courts;
directives would be more effectively enforced if individuals were in a position to rely upon
them as this would essentially strengthen the overall effectiveness of EU law. Court made
clear in this case that directives would only have direct effect where it satisfied VGL
criteria (being clear, precise and unconditional). Further conditions were later applied:
In the Ratti case it was held that a member state had committed a wrong
by not implementing the directive on time, and therefore could not use this
wrong to deny the binding effect of the directive after the date for
implementation.
The case of Marshall made it very clear that direct effect of a directive
could be pleaded against the state but not against an individual; individuals
arent obliged to fulfil directives
The ECJ felt that a directive cannot impose obligations on an individual and
cannot be relied against an individual
Follows the argument that since the duty to implement only falls upon the member
state, the only individuals in a relationship with the state should be able to rely on
an (unimplemented) directive
The notion of organ of the state is a very wide test and the court has
said that they will try and get as many people into the vertical bag as
they can
In Foster v British Gas the court stated who they would regard as being an organ of
the state
o
Covers bodies made responsible by the State for providing a public service
under the control of the State and having special powers for that purpose (2
LIMBS TEST)
Not whether you are state owned but rather if the service is of the state
Organ of the state concept is quite wide and vertical positions arent
limited to the state in a narrow sense
This case indicates that a body which has been made responsible, under the
control of the state, for the provision of a public service is included in the
EU definition of a public body
In the case of Vasallo concerning an Italian Hospital which was independent but
funded by the state; regarded as an organ of the state under the 2 limb test from
Foster
Sussex could be regarded as a state entity due to the fact it was founded by the
powers of the crown, however private universities are not organs of the state
Does the bar on horizontal direct effect of directives discriminate against parties in
private relationships?
Why should accident of who employs you make a difference to your legal rights?
o
AG Lenz in Dori led the critique of such a distinction and the refusal to not allow
horizontal direct effect of directives
o
Distorts competition: employers in MSS that comply are made worse off
than in MSS who default on compliance
Court essentially says that if member states complied with directives then
everyone would be satisfied
In Dori the facts were that an EC Directive on contracts concluded away from
business premises
o
Dori enters agreement at Milan station to buy language lessons and this was
regarded as a horizontal relationship. However she then changes her mind
and the question was if she could rely on the directive to get out of the
contract?
The court held that the treaty distinguishes between regulations and
directives and to give horizontal effect to directives would essentially turn
them into regulations; refusal of horizontal direct effect
Court essentially says that a remedy would be available anyway in the form
of Italy not implementing the directive that would have protected her
But the Court has adopted other principles mitigating impact of the bar on
horizontal effect
Summary and Conclusions
Direct effect invented by the Court to allow individuals to enjoy EU rights and to
embed EU law in national legal systems
2)
This has been a means whereby the severity of the vertical/horizontal distinction has been
watered down.
Has been known as incidental effect, triangular effect, but most commonly as exclusionary
effect
Lack of agreed consensus as to title shows lack of uniformity; court doesnt use any
label
The problem this effect addresses is what happens when legal relations between X and Y
(in a horizontal relationship for example) are touched by the presence of an EU directive?
Does the directive exclude the operation of conflicting but otherwise relevant
national law between the parties? Put another way is the incidental effect of the
directive to render conflicting national law unenforceable?
o
Question of whether national law which conflicts with the envisaged aim of
the directive is excluded by it
Exclusionary effectallows the use ofdirectivesin private legal actions. While an individual
cannot be sued for failure to comply with an EU directive, the states failure to comply
can be an incidental factor in a suit against an individual, where it will not impose legal
obligations upon them.
Often held by commentators that this only has a place in specific types of situation; it is a
factually specific concept. The following cases concern failures by the Member States to
comply with procedural requirements of EC directive regarding technical regulations in
relation to goods
Question is that if the state has not complied with the procedure, then can private parties
who act in their national law assume their national law is ok or can they act in a dismissive
manner with their national law on the basis it has not complied with a directive?
In CIA Security v Signalson et al the facts surrounded security equipment in Belgium.
Belgium fails to notify security equipment regulations under the Directive. Alarm systems
were put on the market by CIA which did not comply with national law. CIA had attempted
to market aburglaralarm in Belgium that was not compatible with Belgian technical
specifications. However, the Belgian government had failed to report these specifications
to the EU, as required by a directive in 1983.
Can CIA ignore Belgian law as it had not been notified in accordance with
Directive?
Belgium breached procedure; cannot enforce new national rules against CIA
Made it clear they are still not allowing horizontal direct effect of the
directive
ECJ essentially felt that the utilisation of the control contained in the
directive would be enhanced by making the domestic rule (which an
individual was not notified of) inapplicable to individuals
The limits of the CIA ruling were tested in the case of Lemmens which concerned the same
directive. Lemmens was charged with drunk driving; defence was that breathalyser
equipment had not been notified so therefore criminal charge based on it was also
defective
Court of Justice distinguishes purpose of Dir (free movement of goods) from use of
kit in criminal law evidence
Suggests the court was not going to stretch the CIA idea to a wholly
unreasonable level
Court has striven to draw a line that excludes the application of inconsistent
national law, but which doesnt entail reliance on the content of the directive
itself
Some feel that the case of Unilever creates uncertainty. The case concerned Italian olive
oil labelling law (about every step from harvest to packaging being in Italy to qualify as
Italian) notified but NOT suspended pending approval
The parties are both private and in a contract with each other; horizontal
relationship
CF rejects oil
AG Jacobs said:
o
Why should traders lose out financially because of a Member States breach
of an EU procedural law?
National court required not to apply Italian rules that have not complied
with Directives procedural requirements
The court stressed that the directive doesnt create individual rights and
imposed no obligations on individuals
Because of subsequent developments, it must be accepted that this principle has more
general effects than mere procedure; makes the supremacy doctrine work through
utilising the exclusionary doctrine in the sense that member states should not get away
with not applying the directives
The case of Kucukdevici can be read in a variety of manners. The facts concerned a
German rule whereby employment before age of 25 not counted for purposes of
giving notice of dismissal
Mrs Kucukdevici was employed by Swedex from the age of 18 (and was therefore in
a horizontal relationship)
Mrs K dismissed at age of 28, given notice as if employed for 3 years rather than 10
She claimed inadequate notice because of German rule being incompatible with EU
age discrimination directive
AG Bot in the case felt Exclusionary effect acts as a palliative for the harshness
of the no horizontal rule:
o
You knock out the conflicting element of national law but are
nevertheless still left with a certain element of national law
But AG goes onto say how this argument wasnever accepted by the Court
in a general and explicit way.
The AG recommended:
o
Court essentially says the directive is not being used but simply lays out a
principle whereby if national law is found to conflict with, the national law
must be disapplied
Court didnt reject AGs recommendation but merely turned a deaf ear to it
Still limits: the Court will not permit exclusion (of national law) becoming
substitution (of EU directive)
o
The Dori scenario: cannot plead exclusionary effect of Directive since the
very thing D wants (a cooling off period) is contained in the Directive
3)
General Principles
The Court of Justice has tried to use other interpretive means to avoid the harshness of
the application of the bar against horizontal direct effect.Sometimes individuals, instead
of relying on a directive, invoke a general principle instead of the utilisation of a
directive; question is how far can you rely on general principles of EU law?
Germany took advantage of the fact that they do not have to implement the
directive until 2006 and arguably made their stance more discriminatory
o
Mangold argues he can rely on the directive which the German law
has clearly ignored
Firstly it was repeated by the Court of Justice how a directive couldnt itself
impose obligations on an individual, but this could be achieved via a general
principle of law.
o
Fact remains however that given the assumption that the treaty framers
didnt think that directives should bind private parties, it would have to be
shown why they would have been content for this to happen via a general
principle of law
AG Mazak said in Case C-411/05 Felix Palacios how the Mangold decision was a
very slippery slope both as regards whether general principle against age
discrimination exists but also the way Court applied it
Should the court have just given horizontal direct effect instead of fathoming this
new concept? Some feel this would have been more consistent and lead to less
uncertainty
o
A period of reflection after Mangoldwhereby the court went quiet in relation to similar
topics
In Felix Palacios the court made no reference to AG Mazaks critique and decided
the case on other grounds; national law was held to be compatible with the
directive anyway
The case of Bartsch demonstrated how the Court circumvented the problem by
saying the case had no link to EU law! The Grand Chamber distinguished it from
Mangold on the facts and felt due to the lack of connection with EU law, the case
wasnt deserving of an answer.
o
AG Sharpston said in her opinion however that despite there being no link,
General EU law principles were capable of vertical and horizontal
application
However, in the Kucukdevici case, it is yet another one which concerned age
discrimination but the facts arose after the implementation period for directive 2000/78
German rule whereby employment before age of 25 not counted for purposes of
giving notice of dismissal
o
Mrs K dismissed at age of 28, given notice as if employed for 3 years rather
than 10
AGs argument that you should rely on the directive which facilitates the principle
and therefore disapply conflicting national laws. (However the court did not take
this route)
o
The Grand Chamber expressed their answer in that non-discrimination on age was a
general principle of EU law, citing Mangold.
o
Refers also to Art 21(1) of Charter (now same legal value as Treaties)
by the court after the charter acquired its new legal status as
equivalent to the treaties post-Lisbon
Can the Mangold doctrine only be used for age discrimination or for any form of
discrimination or for any general principle of EU law? Two issues appear relevant, 1) what
counts as a general principle that can be used in this way, and 2) what time period is
relevant?
Case C-104/09 Roca Alvarez was in regard to the first question and provided the
opportunity for General Principles to be applied further in terms of sex
discrimination
o
AG Kokott said:
Clear that leave rules have been detached from biological fact of
breastfeeding; rules thus about child care and hence discriminatory
Court could have gone down the general principle rule but
chose to go down exclusionary effect route
In regard to the second question, the case of Romer was relevant. It concerned
sexual orientation and therefore another example of a different type of
discrimination. R retired German in same-sex partnership registered Oct 2001
o
Under tax rules, R gets 300 per month less supplementary pension than if
married;
Rs claim starts during implementation period for Directive (ie from Oct
2001)
AG Jaaskinen:
Grand Chamber:
This restricts Mangold in the sense you could utilise principle in implementation
period. Whilst saying nothing about direct effect it can be expressed in terms of it
Are some equalities more equal than others? Age trumps sexual orientation?
The latest case of Dominguez concerned an EU directive stating how all employees are
entitled to a minimum of 4 weeks annual leave, but French law made such a directive
subject to conditions
D employed by C (social security body) and has accident on way to work and is
therefore off work for over a year and is also denied paid leave
o
Claims work-related
2.5 days leave for each month work (min 1 month) but none for time off
lasting more than a year
AG Trstnjak said:
o
Grand Chamber:
o
Takes the view that the French conditions are clearly a breach of the
directive and therefore they faced the question as to the potential
consequence
French courts feel you can give the applicant rights anyway
as if you treat her through a work related concept applying to
her then she would be protected anyway
Result: (maybe?) disapply national law; no substitution (Dir cannot replace nat law)
General principles:
Which ones (age, sex, sexual orientation etc, not annual leave)?
BUT general principles can produce direct effect circumvent Directives but now
doubt over which principles (Dominguez) and when (Rmer)
Still makes clear there is no such thing as horizontal effect of directives but these
ideas are merely ways of the court getting around it
Is it the courts fault?
The court of Justice is pursuing protection and the preservation of at least 3 things:
Conclusion
The Mangold doctrine appeared alive and well as a result of Kckdeveci , but
does it survive Rmer?
Has the Court in Dominguez killed off the potential scope of exclusionary effect or
just ignored it for now?
o
Would giving horizontal direct effect to directives make more sense than the
exclusionary effect or Mangold approaches?
4)
Indirect Effect
Once again the manner in which the horizontal/vertical distinction was perceived as being
unfair and harsh would undoubtedly have played a part in the Courts development of the
so-called notion of indirect effect.
This is the obligation on national courts to construe national laws in conformity with EU
law; a claimant relies on the national law interpreted in the light of the directive as
opposed to relying on the actual content of the directive. This is essentially the duty of
consistent interpretation.
Although much of the case law in relation to indirect effect is in regard to directives, the
duty of interpretation applies to any national law and any relevant EU law. The concept is
simply:
Indirect is used as a short hand for the idea that you are not relying on
the EU measure but rather on the national measure.
National courts have an obligation to further EU law as opposed to impede it; ECJs
now says this is inherent in the treaties and requires no justification
In the Von Colson case, the Court expressly identified the national courts as
organs of the state responsible for fulfilment of community obligations
Court originally based duty on Art 10 EC (now part of Art 4(3)TEU): obligations on
national courts
The scope of the duty on national courts
In the case of Marleasing it was held that the national court must interpret national law in
the light of EU law, but only so far as possible.
European court has always taken the view that this only takes effect when
interpretation is possible; no need to cross over from interpretation to
substitution.
Could the requirement laid out in Marleasing of interpreting so far as possible be seen
as a get-out clause for national courts?
Only demands that national courts interpret national law only so far as is
possible with EU law
Following this case however, it is clear that the Court of Justice expects courts to carry
out a much more intensive duty, and the case of Pfeiffer and Others demonstrated this
intensified duty
This case ratchets up how hard the court must strive to give about a certain
interpretation
However, the Pfeiffer litigation didnt definitively solve the issue of the intensity of the
interpretative duty since, by the time the court rules, the German legislation has been
changes. Therefore, for the most recent pronouncements by the Grand Chamber, some
other cases need to be examined:
The case of CEZ concerned tort of nuisance in Austrian Law and the variation in law
differentiated in the remedy for the concerned nuisance which could result in the
same claimant having different rights, and therefore the question was whether the
remedies under Austrian law could apply
o
The fact that officially authorised had the effect that only Austrians
could be authorised was regarded as being discriminatory
Court still says that you cannot and do not have to use indirect effect where to do
so would be contra legem; where a rule is crystal clear and cannot be compatible
with EU provisions then indirect effect cannot be utilised.
In Kucukdevici the German rule was crystal clear: service before age 25 not
counted
o
However the AG said that in such cases of miss k you just get rid of the age
and use the years of services
In Dominguez due to the directive being silent as to what work is, it was regarded
as needing to be interpreted in a manner which encapsulates and covers the
situation
o
Duties to interpret are within the realm of national courts but they do not have to
do so if it is contra legem. Only in the Kucukdevici case was it felt to be broadly
not possible.
The case of Arcaro said that obligation reaches a limit where such an obligation
leads to the imposition on an individual of an obligation laid down by a directive
which has not been transposed or, more specially, where it has the effect of
determining or aggravating, on the basis of the directive and in the absence of a
law enacted for its implementation, the liability in criminal law of persons who act
in contravention of that directives provisions.
When does the duty apply?
Clearly the duty to apply would exist only after the implementation date for
directives has passed.
Yes (AG Kokott) duty to achieve result starts running for courts from start
of implementation; courts not same as Member States for this purpose
National courts should have the view of achieving this result from
day one trying to persuade the court in the next case that the duty
to interpret should run from the start of the implementation period
The answer as to when a duty would apply was somewhat given in the case of Adeneler
whereby the court had given up trying to justify the text of the Treaty but set out a 2-part
test in cases of directives
Grand Chamber now describes duty as inherent in the system of the Treaty since it
permits national courts to ensure the full effectiveness of Community law
Court sets out a 2-part test, one post-implementation and the other during
implementation period
Latter has origins in earlier case law on Member State obligations in relation
to directives (rather than national courts)
The 2-stage Adeneler test, which this essentially says that courts should not
interpret law in a manner which would later make it difficult for the provision to
be effective after the implementation period
1) From end of implementation period
The Court of Justice held that Member states must refrain from taking measures
liable seriously to compromise the result prescribed.
o
This is the part recalled by the Grand Chamber when formulating its 2-stage
Adeneler test in relation to national courts
Summary
Indirect effect part of national courts general EU duty to secure full effectiveness
of EU law
o
There are limits, egcontra legemcases, but difficulties where boundary lies
o
State Liability
5)
This is a legal remedy which provides a right to damages where a member state has
breached an EU law causing loss to the applicant. Such a principle was unveiled and
established in Francovitch and Bonifaci v Italy where it was seen as inherent in the Treaty
by the Court of Justice.
The ruling in the case established the principle of state liability to pay
compensation for breach of EU law
Although this principle may have been invented as a means of lessening the
harshness of the no-horizontal effect rule, the principle of state liability is not
confined to directives but covers any serious breach of EU law by a member
state causing harm to individuals.
o
Scenario envisaged by directive 80/987 was the need for a backup system in place
for the state to uphold obligations owed to an employee
o
Firm goes bust: F and B sue on the basis that they are owed money
Court rejects direct effect and arguably wanted to use this opportunity to make
something else
o
Up until this case the court had always drawn a distinction between rights (accessible
through direct effect etc) and remedies (left to national systems)
Until this case how you enforce your rights is something determined by national
law
It follows that the principle of the liability of the State is inherent in the Treaty
o
However, in an attempt to appease member states, the Court used the now
Article 4(3) of the TEU which states how member states shall pursue aims
of the treaty and shall not obstruct the routes by which the treaty is
fulfilled
The obligation is also based on Art 10 of the Treaty [now Art 4(3) TEU]
Held essentially that although the provisions of the Directive lacked sufficient
prevision to be directly effective, they nevertheless clearly intended to confer
rights of which these individuals had been deprived through the states failure to
implement them.
Therefore the court established the principle of State Liability that Italy, in failing
to implement Direct 80/987, had not fulfilled its treaty obligations. So, Francovich
who had suffered a loss a result, could bring proceedings directly against the state
This is a clear breach by Italy and therefore the state was held liable in principle to
employees who suffer loss as a result of their failure but this is a matter to be
resolved by the national courts
Refining/widening liability:
In the case of Kobler the Court ruled that the principle of state liability applies
even to violations of EU law by national courts of final appeal; they said it
o
The right to reparation is the necessary corollary of the direct effect of the
community provision whose breach caused the damage sustained
These cases set up the current tests, and so the three tests are to be
known as deriving from Brasserie/Factortame
The factors to establish state liability have been refined through the Brasserie/
Factortame case and are the tests one should use to find liability.
CONDITION 1) EU rule intended to confer rights on individuals:
When it says the measure must be for the benefit of individuals, it is a much looser
test than the Van Gend en Loos test for direct effect for example
o
Prior to the case of Peter Paul a flexible approach was adopted by the European Court of
Justice. This is one of the rare examples whereby a provision failed this test:
The facts were that a bank in Germany goes bust and Peter Paul loses more than
20k. German court granted the 20k but refused the rest and sought a ruling from
the Court of Justice as to whether the lack of German legislation should give rise to
compensation above the minimal threshold
Held that depositors were not concerned in this case and the directive was about a
banking system; was not intended to confer rights upon individual depositors
o
AG Jacobs in the Sweden v Stockholm Lindopark case says serious refers to clarity of
the infringement:
The court in the case of Brasserie/Factortame set out criteria for determining whether or
not there was actually a serious breach:
Factors which the competent court may take into consideration include the
clarity and precision of the rule breached, the measure of discretion left by that
rule to the national or community authorities, whether the infringement and the
damage caused was intention or involuntary, whether any error of law was
excusable or inexcusable, the fact that the position taken by a community
institution may have contributed towards the omission, and the adoption or
retention of national measures or practices contrary to community law.
o
Intentional or involuntary
In setting up these criteria the court gives a glimpse that the member states will
not always be liable but will be in situations where they blatantly got it wrong
The case of Robins v Sec of State for Work and Pensions concerned Art 8 Directive
80/987 (same as in Francovich) which stated howMSS shall ensure necessary
The company went bust and pension scheme was only paid out between 20-49%
benefits, and the employees proceed to sue the UK
Emphasises that parties, MSS and the Commission could not suggest
with precision what a minimum level would be
There are some factors the court may take into account in its assessment of
whether or not there has been a manifest and grave disregard by the
Member State of its discretion
Hedley Lomas was a business which sought to export live sheep to Spain but
the UK government refused to grant them a license as they did not find the
conditions satisfactory; UK was essentially preventing them from exercising
free movement of goods. Demonstrates a one of single act of a government
department denying a license
The case of Kobler (as already stated previously) backs up the notion of courts of last
instance being seen as organs of the state giving rise to liability
The claimant decided to challenge the rule which did not take into account his
provision of teaching abroad as this limited his free movement; Austrian Supreme
Court decided the claimant had no EU rights and did not refer the question to the
ECJ as to the interpretation of their rule in light of the EU rules.
The claimant then starts a second claim based on state liability and this time
another Austrian court refers whether or not state liability could be applied by the
court
Court says yes they can apply it, but the claimant will not succeed in this case
o
Regard must be had to the specific nature of the judicial function and the
legitimate requirements of legal certainty
Liability only in exceptional case where the final court has manifestly
infringed the applicable law
Always sufficiently serious where in manifest breach of the case law of the
Court of Justice
AG feels there was enough EU case law around so there was essentially no
way for the Austrians to justify the rules that are in place
Court of Justice felt that due to the unique nature of the case at hand, the
Austrians had no means of deducing a proportional outcome; arguably
ludicrous
First case whereby they had been asked about states and courts and
so they ECJ were keen to say that they were not going to be too
harsh in its application; warning judgement arguably and a
superficial outcome
Nevertheless this case does go to demonstrate how courts can be liable for state
liability; the decision of the court counts as an act of the state
o
UK doesnt have a state liability review body and so this task is essentially
left to lesser courts
As long as the national rules set out who is to bear the brunt of the suit, then it is
irrelevant (in a federal county) to clarify who would be liable
Where the act is committed by an independent public body, then Haim shows that
joint and several liability was not precluded between member state and an
independent public body, which suggests you could pursue both and that decision is
left to the claimant
AGM v Finland and Lehtinen showed how a nation and individual were sued
for a loss of profit due to the interstate row
EU law does not preclude individual from being held liable additional
to MS, but does not require this
NOW for the actual bulk of condition 3; must be established that there was a direct causal
link between the States breach and loss by individual:
Was held by national court that the Austrian state was not responsible for
causing the breach but rather the newspapers actions.
The very thing the directive was there to protect you against was the very
thing that took place and therefore there is a clear causal link
Once again visiting the AGM v Finland and Lehtinen case, it was stated in regard to
causation that:
o
It was for national courts to ascertain whether there is a direct causal link
Clear evidence that AGMs turnover and profit margin fell following the
statement by Lehtinen
The Court of Justice stated how the purpose of state liability is not
deterrence or punishment but compensation for the damage suffered by
individuals.
Evaluation of State Liability
Theoretically this principle is very broad in its outreach and the reason it occurred in the
early 90s was arguably to prevent individuals from missing out from using effect of
directives where they could otherwise not do so. Highly significant for a number of
reasons:
Another response, initially, to the Courts own bar on horizontal direct effect of
directives
If we as taxpayers are the ones who finance the costs incurred by the state
if found liable, then it is essentially punishing us
Fact court sees compensation for loss of rights isnt so persuasive in its
argument for substituting enforceable rights
Eternal litigation?
Case in
Success rate
England
25
36%
Germany
(15 re directives)
22%
37
(25 re directives)
The statistics below raise questions as to whether national courts are properly interpreting
what serious breach is actually taken to mean; according to the figures, state liability isnt
a big deal
Number
Condition Condition Condition unclear
unsuccessfu 1 not met 2 not met 3 not met
l
England
16
10
Germany
29
18
Up until the mid 1980s the court left enforcement wholly to national law; if you
wanted your rights you had to do so through the national procedures.
The various cases during this period highlighted tension between emphasis on
national procedural autonomy and requirement for national remedies to ensure the
effectiveness of EU rights
Rights were there, but the remedies and procedures were recognised as being
within the national province
The position now has changed; any national rule (substantive or procedural) may be
susceptible to challenge by EU principles of effectiveness and equivalence in the
enforcement of EU rights. Court of Justice has relied upon notion of effectiveness to
further stretch and push the boundaries of EU law to the point where any national rule can
be attacked by a claimant seeking to enforce an EU right on the basis that the national
rule doesn't protect their rights.
Effectiveness and equivalence are entirely judicial in their nature and have no
treaty basis
Principles of effectiveness and equivalence
Anything in national law is capable of being attacked through use of the Court of
Justices weapons; test is whether the national rule does not infringe either the
equivalence or effectiveness standards.
Despite the fact that effectiveness and equivalence have no treaty basis, the treaty does
now underpin such ideas of effectiveness and equivalence:
Art 19 TEU Member States shall provide remedies sufficient to ensure effective
legal protection in the fields governed by Union law.
o
Art 47 Chartereveryone whose rights and freedoms guaranteed by the law of the
Union are violated has the right to an effective remedy before a tribunal. Legal aid
shall be made available to those who lack sufficient resources in so far as such aid
is necessary to ensure effective access to justice
o
National courts duty to provide effective protection of EU rights means that national rules
must NOT:
1) Be less favourable than those relating to domestic claims (equivalence)
o
Effectiveness is more lucid and follows idea of national laws not making it
virtually inaccessible to obtain reparation; huge trump card which can be
utilised by someone with an EU right. All depends on what the courts treat
as virtual impossibility
Effectiveness
Allows for any aspect of national law to be susceptible to being set aside especially where
it is to uphold EU rights, for example:
Concerned Ms Marshalls claim for unfair dismissal, and under statute the
max award by the UK Industrial Tribunal was 6,250, however the amount of
her loss was 19,405
Upon referral to the Court of Justice, it was ruled that full compensation
is to be awarded and the Industrial tribunal was to disregard national limit
due to her EU right to full compensation
In the Factortame case, the facts concerned an Interim relief claim where it
was held that the National court must disapply the domestic rule preventing
interim relief against the crown. A damages claim was also concerned in
that any condition which required proof of misfeasance (tort) would make it
excessively difficult to obtain effective redress. It was held in regard to the
damages claim that total exclusion of loss of profit as a head of damage
cannot be accepted
This does not mean that the ECJ has re written UK case law
So court rules that the German law should be disapplied but only
thing the EU doesn't specify is a specific remedy
The cases listed in brackets seek to ascertain whether or not the doctrine of
effectiveness can be applied in a horizontal relationship
Courage v Crehan was in regard to Article 101 TFEU and the prohibition
against restrictive agreement between undertakings. 101(2) make such
agreement void and there is no explicit reference to other consequences.
Under English contract law, it would be clear that one cannot claim
damages in relation to an illegal contract, and so under English law he was
not entitled to such damages that he sought.
Manfredi is yet another case on an Article 101 infringement, and the Court
of Justice said it follows from the principle of effectiveness and the right
of any individual to seek compensation for loss that injured persons must be
able to seek compensation not only for actual loss but also for loss of profit
plus interest.
Limitation periods are in place to ensure legal certainty and may vary
between states and across different types of claim
The case of DEB revolved around German rules on legal aid and how it was
not available to legal persons (such as companies) except under public
interest criteria and security deposit; undoubtedly a stricter rule than for
natural persons. DEB pursued state liability claim against Germany for
failure to implement EU directive and were unable to afford a lawyer or
meet the deposit, leading to their claim for legal aid being rejected as it
didnt meet the public interest test
Left to national law to play effectiveness and shows the ECJ sitting
on the fence somewhat
In Case C-432/05 Unibet Swedish legislation stated how courts cannot make bare
declarations of conflict between law and higher norms (eg EU law). Lotteries and
gaming activities require licence under Swedish law and promotions were illegal
until such a license was obtained. Unibet bought advertising space from the media
and the State proceeds to prosecute the media but takes no action against Unibet.
Unibet then seek a declaration that Swedish rules infringe the EU Treaty in regard
to freedom to provide services
The Grand Chamber in Unibet felt that a ban on mere declarations doesn't prevent
Unibet from disputing Swedish lottery rules; there were other means of disputing
Swedish rules and this could have been done through simply obtaining a license
o
Effectiveness argument doesn't work and the Court of Justice points out the
variety of other things Unibet could do
An unopposable idea?
Legal certainty
Non criminalisation
Conclusions:
Effectiveness, along with Art 19 TEU & Art 47 Charter, make it possible (albeit
tough) to disapply national rules (procedural/substantive) which form obstacles to
enforcing EU rights
Demonstrates further evidence of extending the reach of EU law into national legal
systems
Equivalence
Equivalence is less frequently contested than effectiveness, for example in the case of
DEB regarding legal aid there was no breach of equivalence where the rules differentiated
between legal and natural persons.
This principle doesn't require member stated to apply its most favourable rules
Essentially, national courts are to consider both the purpose and essential
characteristics of allegedly similar domestic actions
The case of Levez concerned an employee who sought damages for arrears in
payment which had been denied to her in breach of the EU equal pay rules. Court
of Justice had ruled that the two-year limit on arrears of damages in Industrial
Tribunal proceedings couldnt be applied to her on account of the role played by
her employers deception in the delay. However the UK argued that the time limit
should nonetheless apply to her case because an alternative full remedy before the
county court in an action for deceit against her employer and in an action based on
the Equal Pay Act had been open to her, so that the exercise of her rights was not
rendered ineffective in practice:
o
national court must consider both the purpose and the essential
characteristics of allegedly similar domestic actions.
ECJ rejected the UKs argument that the equivalence requirement was
satisfied by the fact that a claim under the EPA (which was intended to
implement EC law) was comparable to a claim based entirely on Article 157
TFEU
national court must take into account the role played by that
provision in the procedure as a whole, as well as the operation and
any special features of that procedure before the different national
courts.
Grand Chamber said the two actions in Spanish law have exactly the same
purpose: compensation for loss as a result of act or omission of the State.
Therefore the Spanish exhaustion requirement for the EU-based claim is
precluded by the principle of equivalence
Is this the Europeanisation of national legal systems?
Will such EU development produce a convergence of national legal systems without direct
EU level harmonisation of laws?
EU-level legislation (eg the criminalisation cases below on the environment and
transport)
o
This idea of domestic courts who must adopt sanctions was reaffirmed in
Commission v Council (ship-source pollution) whereby the commission tried
to write in penalties and the Court of Justice ruled that it did not have the
power to do that.
Why would the member states deliberately copy EU regimes for purely
domestic situations?
AG Jacobs said how the Court should refuse jurisdiction under Article
267 TFEU as this was a purely domestic situation
However the Court or Justice felt that the national court wants
interpretation of an EU measure in order to interpret a national
measure and this was admissible.
Creating EU rights:
The EU/national law relationship more subtle and nuanced than may first appear
EU law more than specific rights and remedies: embedded deeply in national law
via indirect means
o
Driven by the Courts twin goals: primacy & individual protection via
national courts
Article 267 gives the Court of Justice jurisdiction to deliver preliminary rulings on
the validity and interpretation of EU law
Primary purpose of this article is to ensure that EU law has the same meaning and
effect in all the member states
Where a question of EU law is raised before a national court of last resort, that
court must refer it to the Court of Justice. Known as THE OBLIGATION TO REFER
This is one of the jurisdictions of the Court of Justice, alongside Article 263 TFEU and
Articles 258/259 TFEU, but it must be remembered that the relationship between national
courts and the Court of Justice through Article 267 is reference based and therefore no
individual has a right of appeal to the Court of Justice:
It is a link between national courts and the Court of Justice; judicial dialogue
The ECJ will rule on the issues referred to it and the case will then be sent back to
the national courts which will apply the Union law to the case at hand
o
This is also an indirect way of testing the validity of EU action for conformity with
Union law
Structure of Article 267 TFEU
Mandatory references from courts against which there is no judicial remedy under national
law:
The final court in the case, not necessarily the final court in the land
Purpose and use of preliminary rulings
Horizontal (not hierarchical) dialogue between Court of Justice and national courts
Key route for developing new principles through engaging with national courts
o
Must be a court of tribunal which makes the reference; the Court of Justice isnt a
consultant for bodies who want clarity on EU law
As an individual party you cannot compel the reference as it is the court alone
which makes the decision to send the reference and questions
It is for the Court of Justice to decide whether a body is a court or tribunal for
these purposes and the categorization under national law isnt conclusive. Meaning
of this term is a matter of EU law, as said in DHSS v Barr & Montrose Holdings
o
Whether is it permanent
Whether it is independent
Power: other than courts against whom there is no judicial remedy, any court or tribunal
covered by Article 267 has discretion whether to make a reference. This means any court
or tribunal, however lowly in the national order:
Obligation: However, courts whose decisions arent subject to a judicial remedy under
national law must make a reference. Which courts are covered by that provision? In
essence, only those courts or tribunals whose decision is not subject to appeal in the
specified case are included. But there are nevertheless strict conditions, and a final court
covered by Article 267 has no obligation to make a reference in the following cases:
The case of CILFIT made it clear that when a final court considers that a decision
of the Court of Justice isnt necessary to enable it to give judgment
The doctrine of acteclair (literally translated means clear act). CILFIT was in
regard to this issue, and the doctrine is essentially when the correct application of
EU law is so obvious as to leave no scope for any reasonable doubt as to the
manner in which the question is to be resolved, regardless of whether or not there
has been a previous ruling
o
The court follows an open door approach whereby it will not normally secondguess why national courts feel a ruling to be unnecessary.
Court of Justice adhered to the position that it is for the national court to determine
whether a reference is necessary and will not normally disturb such a conclusion.
Nevertheless in certain circumstances the Court will refuse to give a ruling if it considers
that it is inappropriate to do so.
Where the referring court has failed to define adequately the factual and
legislative context of the dispute, as in Telemarsicabruzzo Spa v Circostel
Where the matter is purely internal to the member states and there is therefore
no question of EU law at stake; Vinkov and Cicala
Where the issues of EU law on which the referring court seeks guidance bear no
relation to the actual nature of the case or to the subject-matter of the main
action. Essentially where there is no real dispute between the parties; Foglia v
Novello
o
Foglia was in a contract under Italian law with Novello. In order to deliver
wine free of charges under French or Italian law, Novello must pay French
compensation tax, and the Italian court refers the question to the Court of
Justice in regard to the legality of French tax.
Court of Justice felt there was no dispute between the parties and this was
a fictional dispute and therefore sent the matter back saying there was no
applicable answer.
Where the court was obliged to give (in these situations) rulings
would jeopardise the whole system of legal remedies available to
private individuals to enable them to protect themselves against tax
provisions which are contrary to the treaty.
Outright judicial disobedience is still rare, for example most common instances of
disobedience are:
o
Where national court seeks to avoid applying the Court of Justices answer
So essentially, has the time come to change the way and manner in which Article
267 works?
But problems arise as to who decides, how they decide and what the
criteria should be
limits under Arts 275-276 TFEU (CFSP and aspects of freedom, security and
justice)
Essentially the way in which the referral system has been operating currently is
through a denial of trust for national courts and their hierarchy
Summary
Vital constitutional link between national courts and Court of Justice (bridges
national/EU legal systems)
Reveal things which arent explicitly contained in the treaty, but the treaty
does nevertheless play a role in this area
Issue over whether horizontally applicable too (see work on Mangold etc)
Proportionality
Non-discrimination
They are used by the Court to build up a constitutional image and framework of
the EU
PROPORTIONALITY
This was created by the Court of Justice prior to being inserted into the Treaty as Article
5(4) TEU, the content and form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties.
This area is often seen in the single market
In the case of Walter Rau v De Smedt Belgian law said how margarine could only be
sold in cubes, and Germans sold theirs in cones and therefore werent allowed to
sell in Belgium. Argued to be a consumer protection measure as they wouldnt
know the contents if it was not in the cube shape but the courts said this could be
done otherwise. Held to be excessive and disproportionate
NON-DISCRIMINATION
Had its origins in the Treaty prohibitions against discrimination on the grounds of national
and (in regard to pay) sex. It has since been extended through what is now Article 19 TFEU
which states how non-discrimination encompasses sex, racial/ethnic origin, religion/
belief, disability, age, sexual orientation
Issues arise in regard to the question of whether such a principle has horizontal
enforcement:
FUNDAMENTAL RIGHTS
This has no reference in the original Treaties and is first cited in the Single European Act
1986. The Treaty of Maastricht added respect for fundamental rights as general
principles of community law.
Original treaties were initially economic in their nature and the states were
already members of the ECHR; commonly felt there was no need to reiterate such
issues
Can currently be found in Article 6(3) TEU which stated how fundamental rights shall
constitute general principles of the Unions law. Article 7 TEU even states how there will
be political sanctions for violations. The inclusion of fundamental rights was also a
condition for accession to EU
The codification under Article 6(3) serves to demonstrate how the enforcement of
fundamental rights isnt purely judicial
And the Court of Justice uses the above as inspiration to create EU general fundamental
rights principles.Uses this inspiration to turn it into an EU rule of general principles to
which they could apply an EU law meaning and adjudicate according to their own merits.
Such general principles of EU law have the meanings given to them by the ECJ in
Luxembourg and they retain the ability to formulate the meaning of general principles of
EU law
Court of Justice case law does not allow for fundamental rights to be argued in any case,
and Grogan stated how you need an EU dimension for the case at hand. Essentially the
case law is applicable only to:
1. Acts of EU institutions
2. Acts of MSS when implementing EU law
3. Acts of MSS in derogation from EU law
Is the EU dimension a vague boundary?
Member states are not bound where the case falls outside the scope of
Union law
The facts were not caught by the specific provisions of the Directive against
misleading advertising
Question must be asked if the court had forgotten the need for EU
dimension
Court held that despite them being authorised to take stricter rules, if you
exercise such stricter rules you will still be held within the realms of EU law
and will be subject to general principles as there is an ongoing and
continuing utilisation of the EU dimension
However, if fundamental rights are truly fundamental, then shouldnt they be able
to be invoked directly by the individual?
Transparency and clarity require that one be able to identify with certainty what
the scope of Union law means for the purposes of EU fundamental rights
protection...the clearest rule would be one that made the availability of EU
fundamental rights protection dependent neither on whether a Treaty provision
was directly applicable nor on whether secondary legislation had been enacted,
but rather on the existence and scope of a material EU competence.
Must be borne in mind that the Court of Justice ultimately ignored AG Sharpston in
the above case and so the 3-fold EU dimension test will still be applicable.
o
You should therefore still take the view that the court needs an EU
dimension to a case before fundamental rights can be argued, such is the
case law position
Is the charters scope narrower than what exists under existing EU case law?
Courts case law is ongoing and under Article 6 TEU it is clear that the
treaties acknowledge that it is the charter AND general principles which
make up fundamental rights protection
Court has been criticised over time over its case law of fundamental rights, and
Coppell and ONeill orate this notion
In Kadi it was said the review by the Court of the validity of any Community
measure in the light of fundamental rights must be considered to be the
expression, in a community based on the rule of law, of a constitutional guarantee
stemming from the [EU] Treaty as an autonomous legal system
o
The charter of fundamental rights can be seen as a response by the EU to the protection
of fundamental rights. It was first drawn up in 1999-2000 following an initiative of the
European Council to showcase the achievements of the EU in this field.
Why was a charter of fundamental rights necessary for the EU?
This was never meant to be anything new but merely a codification of fundamental
rights. A means of drawing together different legal documents into one; about
visibility, transparency and codification
o
Now (post Lisbon 2009) has the same legal value as the TEU and TFEU
What are the contents of the charter?
The mandate originally given by the European Council to the body which first
drafted the Charter of Rights was to consolidate and render visible the EUs
existing obligation to respect fundamental rights as opposed to create anything
new.
o
Its content in regard to the rights guaranteed is divided into 6 sections, however
this needs to be looked at through a whollistic perspective to ascertain its
constitutional importance
o
Chapter 1: dignity
Chapter 2: freedoms
Chapter 3: equality
Chapter 4: solidarity
Chapter 6: justice
A general observation is what Article 53 says whereby the ECHR sets the minimum
requirement for rights contained in the charter. This article, given that the charter
is an EU document, means that charter rights merely have to be at least the
standard of that contained in the ECHR but can still essentially provide higher
protection for the same right but can be more extensive.
The effects of the charter:
Its impact was limited when it was not binding, however the charter did have
somewhat of an input and influence; AGs convinced the court to use and refer to
the charter as a source for creating EU principles, however this was not done until
2006
o
It was ignored because the treaty was not passed which sought to make it binding.
In European Parliament v Council (Family Reunification) it was seen how the
charter could be a means of the court coming to the envisaged conclusion
o
Court never treated the charter as setting out individual rights in this area
but did use it so as to find the limitations of the treaty
Position now different: Court cited Charter in Kckdeveci immediately after legal
upgrade of Charter
The key to opening up the charter in regard to who it is addressed to and who can
rely on it
What is the relationship between using this charter and the courts case law
regarding general principles? Do the general principle case law fit the same scope
as the charters application, and is it narrower or broader?
AGs have called for consistency and a wide interpretation to be afforded to Article
51
o
The Grand Chamber view was laid out in the case of Dereci whereby it was shown
how implementation should be treated in a very broad manner. Shows charter is an
interpretative rule for the treaty as a whole. The court then goes on to say that if
the national court considers the situation is covered by EU law then it must
examine Article 7 of the charter
o
Court doesnt say implementing but says lays out requirement of the
situation being covered; one could say that covered by EU law could be
taken to mean the courts case law.
Then court goes on to say that if there is no EU dimension in the case then
they must undertake reading under Article 8 ECHR; however the
Luxembourg court has no power to direct a national court in this manner as
the ECHR is beyond its jurisdiction.
The latest case was Lida which concerned a Japanese national seeking long-term
residence permit in Germany (married to German and German daughter, both were
in Austria). Germany refuse permit and Lida appeals, invoking Art 7 EU Charter
(family life)
o
The Court of Justice felt that the question was why Lida wasn't seeking
residence in Austria; the fact he lived in Germany still didn't deter his
spouse and daughter from moving to Austria. German law allowed for
shorter-term residence and this was renewable and therefore it cannot
validly be argued that denial of long-term German residence impedes the
spouse and daughters free movement
Phrase was not governed by EU law but not this was not
implementation of EU law by a member state and thus shows the
much broader approach taken from the previous case being adopted
by the court
Charter has an unhappy tendency to use rights and principles as descriptors for
different parts of the charter but doesnt explain the difference between a right
and a principle.
However the charter makes clear that there is no difference between rights
themselves; no hierarchy in the charter of rights outranking each other and
there is simply a collection of rights
If rights are truly fundamental they should be absolute and incapable of being
derogated from
Subject to proportionality
The ECHR has a particular derogation for each right, however the charter
merely has a blanket derogation provision contained in Article 52 that any
limitation must respect the essence of the rights and freedoms in question.
You just have one blanket test and no distinction made for each individual
right; all capable of derogation subject to the same test
It would be unwise to suggest that the charter wouldnt have some legal impact on
rights of citizens in individual member states.
51(2) states how the charter doesn't add anything so there is nothing
through which you can deduce horizontal applicability between two
individuals
The above section shows no intention amongst the players who drafted the
charter to create horizontal application
However
Since Lisbon, the charter has become a primary source of EU law and it must be
noted that EU law has never had the problem of giving horizontal effect to primary
sources such as treaties but has only ever encountered problems in relation to
secondary pieces of law such as directives; theoretical argument
But in regard to interpreting the Charter, there are indeed echoes of directives
case law and potential for analogous interpretations of effects of Charter. For
example can there be exclusionary effect of charter on private relations?
Will directives case law drive Charter case law or will Charter push back the
scope of the directives case law??
The question in Dominguez concerned annual leave for workers and if it was a
horizontally enforceable general EU principle, Directive right or a Charter right?
o
Art 31 Charter: every worker has the right to an annual period of leave.
Clearly not at the minute as the ECJ hasnt used it in such a manner
Charter must be one of the sources you use for indirect effect seeing
as it is essentially EU law
5) The status and effect of the opt-out Protocol for Poland, UK and Czech Rep
This exists so as to allow certain states to show their populace that they can curb
the effects of the charter. Only has two sub articles
o
Art 1(1): Charter does not extend ability of CJEU or any court in Poland/UK
to find that laws, regulations or admin provisions, practices or actions of
Poland/UK inconsistent with fundamental rights, freedoms and principles
that it reaffirms
In other words nothing that the UK or Poland might ever do, can be
reviewed by use of the Charter
These are same states that described charter as merely a visibility provision which
doesnt contain any new rights, and now they are retracting from such a statement
by essentially pushing to secure limitation of the charter on them
AG Trstenjak said in NS
o
Art 1(1) Protocol explains Art 51 of Charter and does not exempt
Poland/UK from obligation to comply with Charter or prevent a court
from complying with its provisions
To the extent that a provision of the Charter refers to national laws and
practices, it shall only apply to Poland or the UK to the extent that the right
or principles that it contains are recognised in the law or practices of
Poland or of the UK
NO COMMENT!
CJEU general principles case law affirmed by Art 6 TEU (MSS cannot
opt out of these); eg right to strike (Viking)
Protocol doesnt have much favour and the court has many ways of
circumventing the protocol if it chooses
CJEU general principles case law affirmed by Art 6 TEU (MSS cannot
opt out); eg right to strike (Viking)
New legal value of Charter is an open invitation to Court of Justice to interpret and
develop
So does the no new competence or new tasks for EU look a little thin as selfimposed limit to Charter?
Does the charter meet the visibility, coherence and certainty boxes that it claimed to be
for?
There are still ongoing issues in regard to the Court of Justices general principles
of EU law and the pending accession of the EU to the ECHR
Will there be competition or harmonisation between the Charter and the ECHR?
The Court of Justice will be accountable to the European Court of Human Rights.
Will this entail a convergence of views?
Direct impact of the Charter:
It is being used as the benchmark against which to test the validity of EU and acts of
Member States:
Shows how it is indeed making a difference and is producing effects even where it
isnt saying anything new
Point was that the directive was incompatible with the charter and this was
the benchmark chosen by the court
Is the Charter changing the discourse?
Despite the no new powers, no new fields self-limitation of the Charter, it is becoming
THE reference point for Fundamental Rights discussion/action. Became a specific charter
right as opposed to effectiveness made generally by the Court
Offers clear constitutional status (perhaps more visible than CJEUs fundament
rights-as-general principles case law). This isnt surprising as the Charter is indeed
a piece of primary law
Offers more extensive rights (ECHR only minimum protection: Art 53 Charter)
Final reflections on the Charter
So does the no new competence or new tasks for EU look a little thin as selfimposed limit to Charter?
There are nevertheless doubts as to whether it ticks the visibility, coherence and certainty
boxes that were claimed for it
There is a new problem as to what happens upon the EU acceding to the ECHR
One huge issue which is what the relationship is between the charter and the ECHR
given that the EU is under obligation to sign up as a legal personality to the ECHR
If the Court of Justice becomes accountable to the ECtHR, will this result in a
convergence of views?
The question of accession arose but failed in the 1990s, but is now required under
the terms of the Lisbon Treaty
Whilst the EU is meant to be treated the same as any other state in the ECHR, it is
in the process of securing a privileged deal as opposed to the manner in which
states are dealt with
This is futuristic in the sense that the accession has not yet taken place
ECtHR in Strasbourg
But Court of Justice of EU (CJEU) has borrowed principles of ECHR and converted
them into general principles of EU law (see lecture 16)
o
The EUs own charter repeats some of the ECHR rights, such as the right to
family life which is borrowed from the ECHR
The case for accession
EU institutions not bound by ECHR although EU MSS are; gaps in coverage of rights
o
Risk of conflict between Court of Justice and ECtHR over meaning of same rights
o
Gap in that you cannot review EU institutions under the ECHR and unless
the EU is a signatory that cannot happen; inconsistency that national laws
are reviewable under the ECHR but EU institutional acts arent as the EU is
not a signatory
It was also felt that the Court of Justice had used the language of rights
while in reality it maintained the advancement of commercial goals of the
internal market; didnt protect values which were genuinely fundamental to
the human condition
Accession will mean the Court of Justice will no longer be the final official
arbiter of the lawfulness of EU action which is alleged to violate human
rights.
The case of Bosphorous dealt with the problem of the owners of a Turkish airlines
taking Ireland to court on the basis of interfering with the Turkish right to property,
and can be seen as the most important ruling of the ECtHR concerning its
jurisdiction over EU acts
o
ECtHR held that to rule the presumption that Ireland complied with its
ECHR obligations did indeed arise on the basis that the EU provided human
rights protection equivalent to that of the ECHR system, and that there
was no dysfunction in the EUs control system such as to rebut that
presumption in this case.
Held that the EU not signatory, MSS not responsible either as violation not
within their jurisdiction
There has been discrepancy and conflict but in recent years the Luxembourg court
has begun to follow the Strasbourg court; risk of conflict under separate regimes is
not as great as some people have made out
o
Evidence of conflict under the same set of rights, but this is mainly from
the days of the Charter and when it was signed
For the last 5/6 years, Luxembourg in dealing with rights dealt with
by Strasbourg has followed and applied the Strasbourg decisions
Luxembourg can develop Strasbourg jurisprudence if it wants to, but as of yet has
not done so
EC (as it then was) prevented from acceding to ECHR by Opinion 2/94 of the
Court of Justice (1996)
The Union shall accede to the ECHR. Such accession shall not
affect the Unions competences as defined in the Treaties.
Despite being 3 years on, such an obligation hasnt yet taken full
effect
Idea of treating the EU in the same way a state is treated due to the
fact that the ECHR deals primarily with state issues; done through a
long process of negotiation
Maintaining the autonomy of the EU legal order and the monopoly of interpretation
of EU law held by the Court of Justice
o
This is the question of autonomy and in Lisbon the treaty of the EU protocol
8 was a binding obligation on EU institutions on negotiating accession;
nothing must affect the nature of EU law
By the EU:
Ratification by all MSS through domestic constitutional rules (Art 218 TFEU)
By the ECHR:
Scope for review of EU primary law (Treaties and the Charter) as well as secondary
law
o
Protocol 8 TEU required mechanisms to ensure applications under ECHR are correctly
addressed to MSS or EU as appropriate; a problem because if you take out a ECHR claim
you have to satisfy your domestic claims first and need for all the processes to be
explored.
However, the agreement sets up a co-respondent mechanism for joint member states
and EU responsibility:
Importance of this is that you become a full party to the proceedings and so
become responsible for the outcome
Would be appropriate where the state may say that they only did
something because they had to as a result of EU provision as opposed
to a national measure
It is only the EU that can actually put things right and only the CJEU
can do this; this is why it is desirable to add EU as co-respondent
Only people who can put situation right in context of primary law of
EU are the member states who could reform the treaties through
calling for reform etc
Neither EU nor MSS can be forced to become Co-Rs; could make enforcement of
action difficult for a successful applicant to ECtHR
See Bosphorus case earlier: what if (today) the EU refused to become a corespondent?
May be safer for applicant to join MSS and EU as ordinary respondents from the
start
Autonomy of EU and Court of Justices interpretative role
This is important from an EU point of view and still has not reached a definitive conclusion
in this regard
In cases regarding Union acts:
Thus any further action before ECtHR will have the Courts view of EU law
No issue where the violating act is a union act because any claim against the EU
institution will have gone through the Luxembourg court anyway
National court might opt for Art 267 ref to Court of Justice; but no compulsion to
use preliminary reference procedure
UK and France.
Were this idea referred, the court will approve it as the two
concepts have been asserted towards Strasbourg
What has the court actually been asked to do under the Treaties?
Function of the Court under Article 19 is to make sure the law is observed and this
is an exclusive function
o
The Court of Justice shall ensure that in the interpretation and application
of the Treaties the law is observed
Court was given a vast mandate to ensure the law is observed; this should
be noted when determining if it has used its power excessively
Article 19 also goes on to state Member States shall provide remedies sufficient
to ensure effective legal protection in the fields covered by Union law. And this
was added through the Lisbon changes
Assessing legitimacy
Acceptance:
267 is the channel through which they are able to communicate with
Court
Even when member states have been suspicious about the court they
nevertheless (on the basis of needing real law) accept the courts
jurisdiction
Some Treaty jurisdiction limits (eg former 3rd pillar) subsequently lifted
A court would look daft and incompetent if they were to change their mind
regularly and demonstrate inconsistency
o
Overall the above shows the court adapting to the surrounding political
environment
o
Places itself as custodian of the EU legal order and is more concerned with
boundaries with other legal systems
Court is also anxious to protect it and the EUs stance on particular issues
There are certain concepts which the Court has adopted as part of its constitutional
building system:
1) Attaching dominance to the Treaty
o
Supremacy
Despite this idea not being anywhere within it; read it into the treaties
through its interpretive power and obligation to make the treaties work; if
member states were allowed to do their own thing this would restrict the
treaty from working
Court set out to place limits on institutional freedom and this has been
done well; CJEU has bound in the national courts. National courts do not
get a mention in the treaties. Indispensible strategy of Luxembourg court by
involving national courts. Idea of proportionality is the highest form of
judicial review, and though this key test excessiveness is limited
Court has significantly already acquired a great position through the EUs
constitution
Does this sit easily with the rejection of the CT 2004 by grass-roots
referenda?
However, the Court of Justice is dependent upon national courts (Article 167 TFEU,
remedies and effectiveness)
o
Court is still vulnerable to national courts; there are vulnerabilities but the
court has nevertheless taken a great route up the constitutional ladder
Critique of the Courts approach
CJEU only concerned with pragmatism (eg the use of effectiveness as rationale)
o
Court doesnt have a values base for what it is doing; arguably the
involvement with the charter might change this. Nevertheless the courts
policy is based on a pragmatic view on making the treaty work
Vertical challenges:
Horizontal challenges:
How the TEU, TFEU and Charter relate to each other (all of equal value)
Summary
CJEU architect of sui generis legal order and evolving into the Constitutional Court of EU
Really is just evolving into a constitutional court; as it has evolved and moved in a
certain direction, it has ceased to be less different than other supreme courts
END OF TERM 1
Basic legislative provision which underlines the whole idea of the single market and
entails certain freedom
Idea of common market was included in European Communities right at the very
inception in the Treaty of Rome
Relaunch of the single market in 1986 with the Single European Act which set a
target date for completion of the internal market; 31st December 1992.
o
This target has somewhat been bypassed as we are still in the process of
completion
goods persons services and capital is ensured in accordance with the provisions of
the TFEU
There are four fundamental freedoms of the internal market which are expressed in
Article 26:
Goods
Persons
Services
Capital
Concept of a person is now not the same as a worker as it once used to be; broader
definition as to who can benefit from rights of the EU
Discriminate against your own nationals but it cannot discriminate against nationals
from another member state
What arguments can MS governments put forward to limit free movement rights?
MS can put forward more arguments to justify a block on free movement of goods
as opposed to justifying a block on free movement of persons
Any justification which the MS wants to put forward, the end result has to be
proportionate to the use of the justification
Comparing contributions:
Cassis sets out a principle which is key to the internal market as far as the court is
concerned; principle of mutual recognition
Says it doesnt matter if the member states cannot agree on the content of
blackcurrent lacquer, but must mutually recognise anything which is lawfully
produced as BL in any other state then it must be marketed in all member states
even if it doesnt conform to their domestic definition of the product
Controversial concept however as who is to be the judges who make up the rules in
this manner
FREE MOVEMENT OF GOODS
Intro
The subject matter
The internal market rests upon the elimination of both fiscal and non-fiscal barriers to
goods. These obstacles can take many forms, although we will concentrate upon non-tariff
barriers such as rules about the contents, safety or packaging of goods, or how goods may
be advertised or sold.
Difficulties arise in regard to discrimination which take the form of non-tariff and
non-fiscal barriers which are less evident and apparent and can so be more
damaging due to their less obvious nature in imposing a restriction of the
movement of the goods
Definition of goods:
Products which can be valued in money and which are capable of forming the
subject of commercial actions
Very wide as for what constitutes goods; any product which can be valued in money
and is capable of forming the subject of a commercial transaction is a product for
the purposes of free movement; broad definitions of concepts within this context
of free movement of goods so as to capture as much as possible
Non-tariff barriers:
Just as pernicious as taxation but less obvious and more readily disguised
National rules about goods or products which come before the court and are seen
as potential barriers on movement; link back to Brasserie in regard to the
definition of beer in Germany
Restrictions on advertising in member states also come before the ECJ along with
many others
Policy issues: the treaty framework and the courts approach
Articles 34 and 35 TFEU prohibit obstacles to free movement of goods (imports and
exports respectively) which are posed by various types of national restrictions or measure.
The often-cited notion of a level playing field is the objective of this freedom
Article 34:
The notion of a quantitative restriction was defined broadly in the Geddo case to
mean measures which amount to a total or partial restraint of, according to the
circumstances, imports, exports or goods in transit
Article 35:
Article 36:
Essentially you are given the list of treaty derogations and the justifications
permitted under the treaty
The treaty structure thus prohibits measures falling within Articles 34-35 TFEU, subject to
derogations permitted by Article 36. However, in relation to article 34 so-called
indistinctly applicable measures have been subject to an additional analysis created by
the ECJ known as the Cassis doctrine, whereby such measures may fall outside Article 34
other than by recourse to Article 36. This approach doesn't apply to restrictions on exports
under Article 35. The courts interpretation of the scope of what is a restriction for
these purposes of Articl3 34 underwent significant reappraisal in the Keck case.
In Cassis the ECJ starts to apply article 34 to indistinctly applicable rules; all
products which apply across all member states and do not distinguish between
national and foreign products
Court has said even in those cases where national/foreign products are treated the
same, those may still fall within the ambit of Article 34
In Keck the ECJ did a U-turn on the use of Article 34 which denotes the idea of
judicial activism and interpretation of Article 34
Direct effect
Courts have decided in Lannelli that these provisions in the articles are all directly
effective which means that individuals can bring actions
Given that measures are enacted by member states, where they infringe the
provisions of article 34, member states are liable in damages to compensate any
loss that traders/manufacturers might suffer
Obviously, legislation will constitute direct state action, but Article 34 is capable of
encompassing other measures such as administrative practice and financial support
In the case of Buy Irish a campaign to promote Irish goods which was sponsored by
the Irish governments amounted to a national measure which fell within the scope
of the treaty
The Apple & Pear case saw the court find that the holding of particular member
state products does amount to something covered by the treaty
States may also be liable for failing to guarantee the fundamental freedom of Article 34:
In Commission v France it was held that article 34 doesnt require the state
themselves only to uphold the freedoms
Where a state does nothing to stop a private interference then they will be
liable for undermining the restriction
What is a restriction? The Dassonville formula
Lowering the value of the imported product by reducing its intrinsic value or
increasing its costs
Payment conditions for imported products which differ from those for domestic
products
Prescribing stocking requirements which are different from and more difficult to
satisfy than those which apply to domestic goods
Making it mandatory for importers of goods to have an agent in the territory of the
importing state
In the case of Henn & Darby concerned banning pornographic material from the
Netherlands, this counted as a quantitative restriction within the scope of Article 34
The case of Dassonville was a case about a national rule which required a certificate from
the government of origin where the product in question was an origin marked product
Appellant was prosecuted by authorities for moving goods without the origin mark
Court of justice agreed this was just a measure and gave classic definition of an
MEQR
Clear from this case that the effect of the MEQR is important; doesnt matter what
the intention of the state is but rather the actual impact; if it restricts trade it will
be under the ambit of article 34 and therefore has to be justified by the state
Clear that the crucial element in proving an MEQR is its effect: a discriminatory
intent isnt required
This case reiterated the idea that Article 34 could apply to rules which werent
discriminatory
Also illustrated how reasonable restraints may not be caught by Article 34; known
as the rule of reason
The Dassonville formula is extremely wide, a fact which may explain some of the trends in
the later case law. On the one hand, Article 34 has been invoked as the basis on which to
challenge a broad range of state measures. On the other, the court has found ways of
alleviating the impact of the Dassonville formula, either by recognising new heads of
justification or by treating certain types of measures as outside the scope of the
prohibition in the first place
Indistinctly applicable measures: the Cassis doctrine
Article 34 can bite if the national rule favours domestic goods over imports, even if the
case, on its facts, is not confined to products and parties from one member state. It can
also apply to a national measure preventing import from one to another part of a member
state
A.The notion of an indistinctly applicable measure:
Measures applying in terms in a discriminatory fashion to imports may be distinguished
from rules ostensibly applying to domestic and imported products alike. According to the
Cassis line of cases, indistinctly applicable measures are treated as falling outside Article
34 altogether if they satisfy the requirements of the rule of reason (also known as
mandatory requirements) established in the ECJ case law. Discriminatory measures may
only be justified if they fall within the scope of the derogations specified in Article 36
ECJ held that such a practice cant escape the prohibition laid down by the
treaty solely because it isnt based on decisions which are binding upon
undertakings; Ireland has therefore failed to fulfill its obligations under the
treaty
The reasoning in this case reiterates the ECJs stance in that it looks at
substance as opposed to form
This was a rule which not only applied to Irish souvenirs, but foreign
souvenirs
The removal of discriminatory trade barriers is a necessary but not sufficient condition for
single market integration. The possibility that article 34 could be applied to indistinctly
applicable rules was also apparent in Dassonville and the seeds sown in that case came to
fruit in the Cassis de Dijon case:
Called an indistinctly applicable distinction, and this distinction treats all products
equally in law but in fact creates discrimination; legal position is that both
domestic and imported products are treated in the same way
This case was about the composition of blackcurrant liqueur and the German
authorities refused to allow the import of Cassis that was made in France on the
basis that it didnt have sufficient alcoholic strength
o
Held that something falls within scope of Article 34 unless it can be justified
The principal effect of the requirements in this case was held by the ECJ to
promote alcoholic beverages having a high alcohol content by excluding from the
national market products of other member states which do not answer to that
description; constitutes an obstacle to trade which is incompatible with the
provisions of Article 30 of the treaty
Court suggests identified four new mandatory requirements, whilst making it clear
that the list was non-exhaustive. Obstacles to free movement within the EU
resulting from disparities between national laws must be accepted in so far as they
are necessary in order to satisfy mandatory requirements, relating in particular to:
o
Consumer protection
Therefore, the result the courts ruling in Cassis had essentially made clear that what is
now Article 34 could apply to national rules that didnt discriminate against imported
products but which inhibited trade because they were different from the trade rules
applicable in the country of origin
The four matters listed above were illustrations of what could prevent a trade rule
which inhibited the free movement of goods from being caught by what is now
Article 34
State regulation of certain areas must be accepted, together with any obstacles to
trade which might follow from disparities in national laws, but only insofar as these
trade rules could be justified by one of the mandatory requirements
The effect of this case rendered inapplicable trade rules that prevented goods
lawfully marketed in one state from being imported into another state
Subsequent cases have added additions to the non-exhaustive list from Cassis:
B.Subject to proportionality:
The mere fact that a measure purports to serve an acceptable purpose doesnt per se
legitimize it under the Cassis approach. The general EC law requirement of proportionality
must also be satisfied. Justifications will fail if there is a less restrictive means available
to pursue the legitimate goal
If there are less restrictive ways to achieve the outcome then the court will always
try to get the member states to go in that direction
Walter Rau v de Smedt it was said that where a member state has a choice of
different routes to achieve a result, it must choose the least restrictive route
which doesnt interfere with free movement
In Oosthoek the same argument was put forward in regard to consumer protection
and again the proportionality test is applied here
C.Burden of proof
In common with the derogations of Article 36, it is for the member state to denmonstrate
that a mandatory requirement is made out. The court is primarily concerned with whether
less burdensome methods are available to achieve the legitimate objectives identified by
the member state
When claiming the mandatory requirement, the burden lies with the member state
as expected
Each member state must recognise products which are lawfully manufactured in
other member states
States must mutually recognise each others standards of production and marketing
of products; starting position is that products will be mutually recognised
o
Home state basically regulates the production process; host state must
respect this process
This puts member states in competition with each other with the result of greater
consumer choice
Argument that this mutual recognition principle can result in a race to the bottom
in terms of the standards of production as it will be the lowest common
denominator in terms of quality which prevents
Repercussions of Cassis
Widening of the scope of Article 34 TFEU:
In Quiet Lynn concerning products from sex shops and a prohibition of sale
of particular products; held such a prohibition of sales of these products
had no connection with cross-border activity and so did not fall within the
scope of Article 34 and they were not intended to regulate trade between
member states
Prior to 1993 (Keck before its decision) in the case of Blesgen the court
found that a national rule which banned sales of strong liquor on public
premises didnt breach Article 34 as it had simply no connection with
imported products and so was not inhibiting cross border trade
In Gilli and Andres where importers of apple vinegar from Germany into Italy were
prosecuted for fraud because they had sold vinegar in Italy which wasnt made
from the fermentation of wine
o
ECJ held, in accord with Cassis, that the French rule was incompatible with
this Article and couldnt be saved by the mandatory requirement
Rule hampered community trade and didnt benefit from the mandatory
requirements
Similarly, in Rau Belgian law required all margarine to be marketed in cube shaped
packages, irrespective of where it has been made, but it was clearly more difficult
for non-Belgian manufacturers to comply without incurring cost increases.
o
ECJ held that Article 34 was applicable and that the Belgian rule couldnt
be justified on the basis of consumer protection, since any consumer
confusion could be avoided by clear labelling
In Blesgen the court rules that not all available avenues of trade had been removed
by the national rule in question
In Quietlynn v Southend where in the context of sex shops operating without the
required license, the court observed that
it must also be pointed out that provisions prohibiting the sale of sex
articles from unlicensed sex establishments have in fact no connection with
intra-community trade, since the products may be marketed through other
channels. Moreover, those provisions are not intended to regulate trade in
goods within the community and they are therefore not of such a nature as
to impede trade between member states
In the Sunday Trading cases, the ECJ adopted a Cassis-type approach, treating
national rules on opening hours as restrictions but justified by reference to a new
mandatory requirement (socio-cultural conditions)
o
Necessary in a case such as this to consider first of all whether rules such as
those at issue pursue an aim which is justified with regard to community
law. National rules governing the hours of work, delivery and sale in the
bread and confectionary industry constitute a legitimate part of economic
and social policy, consistent with the objectives of public interest pursued
by the treaty
Rule was prima facie caught by Article 34 but it could escape prohibition if
there was some objective justification and the effects of the rule were
proportionate, the latter issue to be determined by national courts
Fell within the scope of the treaty and was a restriction but in this case it
could be justified by a new mandatory requirement which was respect for
national socio-cultural traditions
However in this series of cases where it was suspected that enterprises such
as B&Q were manipulating Article 34 to push for trades; showed need for
Article 34 to be looked at again and the decision made in Cassis needed to
be reviewed in light of these problems
In the case of Keck the ECJ was faced with a challenge to French rules prohibiting the
resale of goods at a loss.
ECJ held that Cassis decided that measures of equivalent effect prohibited by the
treaty include obstacles to the free movement of goods where they are the
consequence of applying rules that lay down requirements to be met by such
goods, to goods from other member states where they are lawfully manufactured
and marketed, even if those rules apply without distinction to all products unless
their application can be justified by a public interest objective taking precedence
over the free movement of goods
Held in this case that as long as those provisions apply to all affected traders
operating within the national territory and provided that they affect in the same
manner, in law and fact, the marketing of domestic products and of those from
other member states then they fall outside the scope of Article 34
The court said that Cassis type rules relating to the goods themselves were within
Article 34 because they would have to be satisfied by the importer in addition to
any such provisions existing within its own state
o
Such rules do not by their very nature prevent access to the market or to
impede access any more than they impede the access of domestic products.
Such rules therefore fall outside the scope of Article 34 of the Treaty.
Court also clarifies decision from Cassis; clarification effectively amounts to a Uturn in relation to the broad scope of the Cassis doctrine
o
1) product requirement rules: which are about the nature of the product
itself. Such as the size/weight/ingredients/presentation/labelling/
packaging of a product
2) selling arrangements
In Tank Station the rules concerned were the opening hours of petrol stations, and
the court decided that rules on opening hours were now not covered by Article 34
o
Court held that national rules that provided for the compulsory closing of
petrol stations werent caught by Article 34
However in Clinique the court said that a restriction on the use of a name of a
product was a product characteristic rule and therefore fell within the scope of
Article 34
Mars concerned claims that could or couldnt be made on chocolate bars and the
court said this was concerning a product characteristic and fell within the scope of
Article 34 and needed to be justified
Post-Keck: the limits to Article 34s prohibition
The cases since Keck confirm that it operates as a limit on the scope of the Dassonville
prohibition, so as to exclude certain types of marketing rule from the ambit of Article 34
without the need to justify the rule. Major refinements/clarifications of Keck include:
Product characteristics are to be distinguished from selling arrangements, with product
characteristics still being caught by Dassonville.
In the Familiapress case, the idea was exemplified that it is open to the ECJ to
characterise rules which affect selling as part of the product itself and hence
falling within the ambit of Article 34
o
In this case it bears on the actual content of the products, in so far as the
competitions in question form an integral part of the magazine in which
they appear; case isnt concerned with a selling arrangement within the
meaning of the judgement in Keck
Concerned a new type of restriction; talks about restrictions put on the use
of a product in a particular member state. Product itself isnt unlawful, but
it simply cannot be used in a particular manner
Use cases do fall within the scope of the treaty and therefore do need to be
justified
All trading rules enacted by member states which are capable of hindering,
directly or indirectly, actually or potentially, intra-community trade are to
be considered as measures having an effect equivalent to quantitative
restrictions and are on that basis prohibited by the article]
The article reflects the obligation to respect the principles of nondiscrimination and of mutual recognition of products lawfully manufactured
and marketed in other member states, as well as the principle of ensuring
free access of community products to national markets
Held that whilst the Italian rule fell within the ambit of Article 34 it could
be justified on grounds of public safety
ECJ held that where the national regulations for the designation of
navigable waters and waterways have the effect of preventing users of
personal watercraft from using them for the specific and inherent purposes
for which they were intended or of greatly restricting their use, which is for
the national court to ascertain, such regulations have the effect of
hindering the access to the domestic market in question for those goods
and therefore constitute, save where there is a justification pursuant to
Article 36 or there are overriding public interest requirements, measures
having equivalent effect to quantitative restrictions on imports prohibited
by Article 34
Accepted however that the national rule could be justified for the
protection of the environment, provided that certain conditions were met
Commission v Portugal concerned tints on windscreens etc and it was held this use
was affected by the treaty. A justification was tried to put forward that this rule
was necessary to combat crime and ensure road safety
o
Court said the justification was disproportionate and this visual inspection
by officers was only one way of preventing crime and this was an
unnecessarily restrictive measure
So essentially, restrictions on the use to which a product may be put fall within
the scope of Article 34 where they hinder market access
The Keck formula will not be satisfied if there is discrimination in fact. This is proving to
be a significant limit to the escape route provided by Keck
Establishing whether there is indeed discrimination in fact will normally be a matter for
the national court, but there are notable instances where this is not so:
Even if a national regulation is categorized as being about selling, it will still be caught by
Article 34 if it has a differential impact, in law or fact, for domestic traders and
importers, this is exemplified in De Agostini
The situation isnt one covered by the Article unless it can be shown that the ban
doesnt affect in the same way, in fact and in law, the marketing of national
products and of products from other member states
For the national court to determine whether the ban is necessary to satisfy
overriding requirements of general public importance or one of the aims listed in
Article 36, if it is proportionate to that purpose and if those aims or requirements
couldnt have been attained or fulfilled by measures less restrictive of intracommunity trade
In law the advertising restriction applies equally to everybody, but in fact the Keck
proviso might not be satisfied as if you prohibit advertising in a particular member
state it can have an effect on non national manufacturers and traders
Nationals from a member state are used to buying particular products, but
if you are a newcomer to the market, how are you draw attention to your
products if you cannot advertise?
In Gourmet Intern the question for the court was to examine the nature of the restriction,
and it finds it to be a selling arrangement rule
Found there was a disadvantage here for traders outside the Swedish market
If you arent Swedish one isnt able to get their products recognised on the
Swedish market; differential impact on the non-national and needs to be
justified
Court held that it was able to conclude that a prohibition of all advertisements in
the press, on the radio and on television, the direct mailing of unsolicited material
or the placing of posters on the public highway is liable to impede access to the
market by products from other member states more than it impedes access by
domestic products, with which consumers are instantly more familiar.
o
Can only be saved from one of the justifications set out in the treaty and it was
held this could happen on the grounds of public health
Rule could impede access of imported medicine to the German market more
than domestic medicine
A prohibition on internet sales would create a setback for those in other states
Access to the market is an important principle; court held the German legislation
does contain discrimination as it affects different provisions in different ways
Furthermore, in Karner which was an Austrian case regarding advertising and the rule at
hand prohibited retailers from indicating to consumers what the commercial origins were
of the products for sale:
Although prohibition was likely to impact volume of sales, it was not likely to limit
access of traders and fell beyond scope of Article 34
In the TK-Heimdienst case concerning an Austrian restriction which set out that home
delivery services of products entailed for retailers to have a premise in the adjacent
locality
Held there was discrimination in fact because the legislation affected non-domestic
products differently and obliged them to re-establish a new premise in Austria
o
The court held that this requirement impedes access to the market of the member
state of importation for products from other member states more than it impedes
access for domestic products
Whilst indeed being a selling arrangement, it was a discriminatory one that fell
within scope of the treaty and would need to be justified
In A-Punkt the court said the Austrian rule prohibiting selling in private houses were selling
arrangements but that in order to fall within the scope of the treaty, there would have to
be shown an actual disparate impact on traders from other member states. It would be for
the national courts to look at the question on differential impact and this was clearly not
satisfied
If there is found to be discrimination in fact and the issue falls back inside the
treaty, when it comes back to the justification, it can be made out either by Article
36 or by a mandatory requirement
Is article 34 subject to a de minimis rule?
Third set of problems relating to the Keck case law is consideration of the fact that some
selling arrangements may produce a differential impact in fact on non national traders;
implication is that if you cant satisfy the Keck proviso, this will fall back inside Article 34
and not be justified
De Minimis means there must be a minimum amount of disruption in order for a provision
to be caught by article 34, advocated by AG Jacobs in Leclerc-Siplec where he felt that
advertising could play an important part in breaking down barriers to inter-state trade,
and was therefore concerned that it should always fall outside Article 34
Concerned a big French supermarket chain and it was found by the ECJ that a
French law prohibiting certain forms of advertising on TV was a method of sale
promotion and was a selling arrangement rule
If there was no substantial impact, or the effect on trade was demini mis,
then such measures wouldnt be within article 34
Nevertheless the ECJ rejected arguments that the article contains a de minimis
rule
In Burmanjer the court appears to indicate that the discriminatory impact should be fairly
substantial in order to satisfy the Keck proviso. Court said rule about certain sales didnt
affect the marketing of products from other member states more than it did in the host
state; no real differential impact and even if there was some, it would simply be too
insignificant
It has now gradually become accepted that there should be some fairly substantial
discriminatory impact and so there must be some dimini mis rule
If you are a UK national, you cannot use EU rules to challenge production of things
within the UK market
This allows member states some degree of control of the home market
In Gallaher which concerned EU directives labeling of tobacco products, the court said
that in the UK the health warnings that were required to be placed on tobacco products
and to cover 6% of the surface area of the packaging were legitimate even though the
directive itself imposed a minimum harmonisation requirement of 4% coverage
Court rejects idea that reverse discrimination matters in EU law and this was
simply the result of the harmonising provision meaning member states could do
more if they required
Court said this was a purely internal matter and wasnt a matter for EU law
However, the court having said it wasnt within jurisdiction of the court,
proceeded to offer their opinion as to what national courts should do when
faced with reverse discrimination
Many of the rules about imports are equally applicable to exports, but with the absolutely
critical exception that non-discriminatory measures have always been held to be outside
the prohibition of Article 35 (so that the Cassis rule of reason doesn't apply as stated in
Kaas v Netherlands and Ravii).
Also the same principles apply in that there has to be a restriction which impedes
cross-border movement
The specific treaty derogations provided by Article 36 TFEU
Article 36 states:
In the context of article 36, economic justifications cannot be put forward in order
to say restrictions on trade should take place
General matters
In the case of Cullet v Le Clerc the French government tried to rely on public
policy arguments to justify the national restriction on selling petrol prices below
those set by French law
o
Held the French government to not have shown that an amendment of the
regulations in question, in conformity with the principles set out above,
would have consequences for law and order and public security which the
In the Campus Oil case, Ireland required importers of petroleum products to buy a
certain proportion of their products from a state owned oil refinery at prices fixed
by the Irish government
o
Petrol was an essential source and this public security measure could
transcend the economic policy; sufficient interest in guaranteeing a
continuous supply of petrol products; an exception to the general rule that
economic arguments dont work
Must be remembered that Article 36 is only successfully invoked if the steps taken by the
member state are necessary and proportional to the protected interest required!
One case in which the public policy exception is accepted, in Thompson concerning the
British ban on exporting British silver coins even though there Is no legal tender so as to
preserve the right to maintain the states mint
In regard to public morality, the court of justice has provided a lot of leverage to the
domestic courts to define what is moral. In Henn and Darby the UK banned the
importation of obscene pornographic scenes from the Netherlands on the grounds of
morality
Public morality
In Sandoz the Dutch authorities refused to allow the import of cereal muesli bars with
added vitamins coming from Germany. They were lawfully manufactured and sold in
Germany, but the court said in regard to the added vitamins, the rule would be justified
on the grounds of public health
Public health
Relationship between the rule of reason and Article 36
The effect of the rule of reason is that an indistinctly applicable measure may fall outside
the prohibition contained in Article 34 altogether. Any measures which are caught by
Article 34 may still be justified by the specific grounds of Article 36
This was distinctly applicable as the restriction didnt cover the disposal of locally
produced waste
However the ECJ held there was no discrimination and allowed environmental
protection as a mandatory requirement to justify the measure
Harmonisation:
Article 114 of the TFEU states how the EP and Council shall, acting in accordance with the
ordinary legislative procedure, adopt the measures for the approximation of the provisions
laid down by law, regulation or administrative action in Member States which have as their
object the establishment and functioning of the internal market
There are provisions for member states to notify the commission as to what theyre
doing, and the commission can approve what theyre doing especially in technical
areas. However we are more interested with the power to harmonise using the
TFEU as a legal base through which to introduce positive harmonisation efforts
Must be noted that this is a residual provision and operated only save
where otherwise provided in this treaty
The general test propounded by the ECJ for the resolution of boundary disputes
(about the correct legal basis for EU legislation) was that regard should be had to
the nature, aim and content of the act in question
This cannot be used and abused to enact measures which have a very minimal link
to the internal market and can only be used for measures which have as their
principle object the internal market
Article 114 can only be used if the measure is genuinely intended to improve the
internal market and actually has that effect
o
This Tobacco Advertising case confirmed that article 114 does indeed have its limits
despite being broadly framed:
ECJ struck down a directive designed to harmonise the law relating to the
advertising and sponsorship of tobacco products and concluded that the measures
must be intended to improve the conditions for the establishment and functioning
of the internal market
Would be contrary to the treaties in place at time to give any general power of
market regulation to the EU, and the EUs powers were limited to those specifically
conferred on it
Court did go on to make an important distinction saying that whilst a ban on what
they called non-static advertising media could be adopted on the basis of article
114 a ban on static advertising media could not
o
In the later case of BAT a directive on health warnings was expressly upheld on the basis
that it complied with Subsidiarity.
Any products which complied with the directive and required 4% of the packaging
to be covered by the health warning label would be freely able to circulate within
the market; this clause meant this provision fell within the scope of the free
market
Therefore, the treaty can only be used where the measure is genuinely intended to
improve the functioning of the internal market
Cant simply be used in order to justify other measures which only have a very
limited connection with the internal market
In the second Tobacco Advertising case (2006) new tobacco advertising directive was
justified in its revised state within the terms of Article 114
ECJ said the measure could be validly adopted under Art 114 as there were
differences between national laws on advertising and sponsorship of tobacco
products which could affect competition and intra-community trade.
Stated more generally the circumstances in which Article 114 could be used, and
this is undoubtedly broad criteria
o
3 types of harmonisation:
1) Total
o
Eg, chocolate as well and its content which now must have no more than 5%
vegetable fat
2) Partial
o
A sort of halfway house whereby the EU will set standards in some areas but
will leave MS to regulate others
3) Minimum
o
Standard setting whereby the standard is the minimum that is allowed but
the MS can go above that if they wish, but the flaw is one which they
cannot go lower
Court has been reluctant to rule out these derogations where there is
legislative harmonisation
Can be seen as anti-democratic by political scientists that the court has made
these advancements in regard to completion of the market
FREE MOVEMENT OF PERSONS
Intro
There was the original concept of free movement of workers, and this had economic and
social dimensions to it:
Economic: the rationale is to ensure what economists term the optimal allocation
of resources within the EU
Social: free movement of workers captures the idea that it should be regarded as
natural within the union for people to work in other member states, and that this
thereby fosters an ever closer union of the peoples of Europe
Importance lies with the nationality of the person which is crucial to the triggering of free
movement
The legislative framework concerning the free movement of workers
Key provision is Article 45 TFEU
Consists of 4 paragraphs
o
3) Provides for the derogations (justifications) that member state can put
forward to justify an interference with free movements of persons/workers.
This is the equivalent of Article 36 in relation to goods; however the list
here is shorter than in the accepted interferences for goods.
There are also certain rights which a free mover would have/take
from the provisions of the treaty
In addition to Article 45, Article 46 provides for the opportunity to make secondary
legislation within the area of free movement of persons/workers in order to bring about
the realisation of the freedom that is contained in Article 45; provides a legal base for
making secondary legislation.
Directive 2004/38 covers the rights of citizens and their families to move within
the EU; referred to as the citizens rights directive. Has largely replaced the
previous secondary legislation in this area
Regulation 1612/68 has been replaced by provisions of the citizens rights directive
The personal scope of Article 45
Nationality
These provisions within the treaty contain within them a nationality requirement; in order
for free movement provisions to apply, the beneficiaries must firstly be nationals of one of
the member states
In Micheletti someone had dual nationality (one was EU the other wasnt) and the
question was if he was an EU citizen. Dual nationality doesnt make any difference,
as long as the person has one EU member state nationality; dual nationality isnt a
barrier from taking EU citizen rights
o
The case law developing Article 45 clearly shows that the term worker is an EU law
concept and that it is to be broadly construed
The EU definition of a worker has been crafted by the court through a series of
cases
In Walrave and Koch it was held by the ECJ that Article 45 would apply even where
the work was done outside the community, so long as the legal relationship of
employment was entered within the community
In Boukhalifa the court ruled that the Article applied also to the employment of a
member state national which was entered into and primarily performed in a nonmember country in which the national resided, at least as regards all aspects of
the employment relationship which were governed by the legislation of the
employing member state
Court insisted from the outset that the definition of a worker was a matter for EU law,
not national law. In Hoekstra it was said by the ECJ that the objectives of the treaty would
be frustrated if the meaning of such a term could be unilaterally fixed and modified by
national law
Court has however consistently construed the term broadly and has presented this
freedom as part of the foundations of the EU
In Meeusen it was even said that any person who pursues employment activities
which are effective and genuine, to the exclusion of activities on such a small scale
as to be regarded as purely marginal and ancillary is treated as a worker
Cases on the personal scope of protection have had to deal with the threshold at which
types and duration of work qualify under Article 45. In the case of Lawrie-Blum the
question was whether a trainee teacher could be regarded as a worker under Article 45.
Economic exchange for your activity carried out for your employer
In subsequent cases the court has gone on to add to this list of criteria; work should be
genuine and effective
Court said in Bettray, as for defining genuine and effective that work cannot be
regarded as an effective and genuine activity if it constitutes merely a means of
rehabilitation or reintegration for the persons concerned
In Steymann a plumber worked for a religious community and the court found in his
case that he could be considered a worker under Article 45 and said it was
impossible to rule out the fact that this work might be constitutive of economic
activity.
o
That that in this case the work might be seen in conventional terms as being
unpaid didnt mean that it was not effective economic activity
National court must take account of the regular/irregular nature of the work
whether it fulfils criteria of being genuine and effective
In the case of Kurz the court tried to summarise its position on the definition of a worker
and laid out two elements to the definition:
1) Substantive test
o
Looking for the work to be genuine and effective rather than marginal and
auxillary
2) Formal test
o
Certain period
Performs services
Receives remuneration
Level of productivity
In Kranerman court said that trainee lawyers do carry out genuine and effective work and
so would be regarded as a worker under the terms of the TFEU
Given that trainee lawyers carry out genuine and effective activity as an
employed person, they must be considered to be workers
Work seekers
Court extended the definition of worker to include job seekers and first did this in case of
Antonissen where the court held that those who are actively seeking work do not have the
full status of a worker, but are nonetheless covered by Article 45
The ECJ held that the Article must be interpreted as enumerating, in a nonexhaustive way, certain rights benefitting nationals of member states in the
context of the free movement of workers and that that freedom also entails the
right for nationals of member states to move freely within the territory of the
other member states and to stay there for the purposes of seeking employment
o
Therefore, they are covered by Article 45 but member states may prescribe
a time after which the job seeker can be required to leave. In this case 6
months was held to be a reasonable period
This case provides a clear example of the courts purposive approach, in suggesting
a wider scope for Article 45 than the words of the article convey
Interesting in this case was the ECJs statement that the rights expressly
enumerated in Article 45 are not exhaustive. This approach leaves the court power
to adapt the scope of the Article through interpretation, in accordance with the
EUs changing social, economic and political climate
Under Article 14(4)b someone may still be able to remain in the country if they have a
chance of getting a job and provide evidence they are still seeking employment
EU citizens may not be expelled for as long as they provide evidence that they are
continuing to seek employment
In the case of Martinez Sala it was shown how where someone fails to satisfy the
authorities that they are a worker, those individuals may now be saved by the citizenship
provisions
Growing category of persons who cannot show they are engaged in economic
activity, and for those people still, the provisions on citizenship can prove helpful
If you cant show yourself to be a worker, being an EU citizen and a free mover can
still grant you access to some benefits and entitlements
In Collins the ECJ confirmed the distinction between fully-fledged workers who can
benefit from all provisions of regulation 1612/68 concerning social advantages and
equality of treatment with national workers, and job-seekers who, although covered by
Article 45, can benefit only from the provision of regulation 1612/68 governing access to
employment
Shows that failure to meet the worker threshold doesn't necessarily deprive
individuals of some protection under EU law. The court has significantly developed
the concept of union citizenship under Article 21 to give access to rights and
benefits to groups who arent necessarily economically active in the workers
sense
The nature of the prohibition in Article 45
If you only apply Article 45 to state measures it wont catch that many, but if you
apply it to state and private measures you can catch the more restrictive provisions
Article 45 has been held to have forms of horizontal application and applies to nonstate bodies
The court made it clear in Walrave as well as Bosman that international sporting rules may
restrict article 45, and so their restrictions are caught by the treaty; horizontal
application
In Angonese the court went on to indicate that Article 45 is also horizontally applicable to
the actions of individuals who, unlike associations, do not have the power to make rules
regulating gainful employment, such as a single employer who refuses to employ someone
on the ground of their nationality
In this case a condition for entry to the competition imposed by the bank was a
certificate of bilingualism (Italian and German). The certificate was to be issues by
the public authorities in Bolzano after an examination held only in that province.
Since Angonese didnt obtain the certificate the bank refused to admit him to the
competition for the post, and he argued that the requirement to have the
certificate was contrary to Article 48
The court held that the prohibition of discrimination based on nationality applies
not only to the actions of public authorities but also to rules of any other nature
aimed at regulating in a collective manner gainful employment and the provision of
services
Court also ruled that the fact that certain provisions of the treaty are formally
addressed to the member states doesnt prevent right from being conferred at the
same time on any individual who has an interest in compliance with the obligations
thus laid down
Direct discrimination
o
Indirect discrimination
o
Where you have equal treatment in law, but in fact there is a requirement
which makes it more difficult for foreign workers to satisfy the particular
requirement imposed, there you might have indirect discrimination
The concept of indirect discrimination entails that apparent equal treatment is still prone
to constituting discrimination in fact against migrants, for example, rules which specify
language or residence requirements for jobs have often come before the court in this
context.
In the case of Groener a Dutch teacher was refused a post at Dublin college
because she didnt speak Gaelic. The ECJ upheld the Irish language requirement
however
o
As it formed part of the Irish govt. policy to promote the Irish language as a
means of expressing national culture and identity.
As for non-discriminatory measures, the response of the court has been different for
workers than it has been for goods; non-discriminatory measures are potentially caught by
Article 45 if they impede access to the job market in another member state
The court has had to address the problem of indistinctly applicable measures in relation to
persons just as it had too in the context of goods. However, its response (post-Keck) has
arguably been more transparent and reasoned than its Keck solution for goods
ECJ has ruled that in the context of each of the freedoms, even non-discriminatory
restrictions may breach the treaty if they constitute an excessive obstacle to freedom of
movement. A clear illustration of this can be found in the Bosman case where the transfer
The fact that the transfer system applied equally to players moving from one club
to another within a member state as to players moving between states, and that a
players nationality was entirely irrelevant, didnt prevent the system from falling
foul of Article 45
o
Such rules still directly affect players access to the employment market in
other member states and are thus capable of impeding freedom of
movement for workers
In this case the fact there was no discrimination was irrelevant: the existence of an
obstacle to the access of workers from one member state to employment in
another member state was enough to attract the application of Article 45
o
The above quote essentially made clear that as long as the transfer rules
constitute an obstacle to article 45 then it gives rise to its application
Transfer rules were indistinctly applicable rules; any rules which might deter somebody
from moving, even if they are neutral in regard to nationality, they are caught
Justification if that obstacle is made with a legitimate aim; this case doesnt
narrow the scope of Article 45 and non-discriminatory provisions are still caught
under Article 45
Deliege in regard to judo, felt her movement was restricted by not being selected.
Court said that of course the selection rules did prohibit her rules to an extent, but
this limitation was inherent in the nature of the selection process
In Morson v Janjan 2 Dutch nationals worked in the Netherlands were held to not
be able to bring their parents (third country nationals) into the country. But had
they moved to the UK for example, they could have brought their parents as their
family
In Yukka v Jackett Germans tried to use EU law to enter Germany, and the court
said no it was a purely internal situation and so didnt trigger EU law
In Zambrano a Colombian national and his wife proceeded to have 2 children in Belgium
who went on to acquire Belgian nationality meaning they were EU citizens. Court simply
said to take away the residency rights of the parents in this case would deprive the EU
child the exercise of their citizenship rights
It would seem from these cases that the protection demanded by EU law only covers
nationals vis-a-vis their own state to the extent necessary to protect free movement
within the EU and the construction of the internal market it isnt the result of any equal
treatment principle
The rights and benefits conferred
Part of the debate as to the distance travelled by the EU away from exclusively or
predominantly economic objectives can be seen in this context. Much of the substantive
content of migrants rights has been fleshed out by secondary legislation.
Directive 2004/38 essentially creates the picture that this directive combines the old
features of workers with the modern notion of union citizenship to provide a gradated
scheme of protection
Right not to be discriminated against because you are a migrant worker or citizen
Equal treatment with nationals
However in Christini the court decided to extend the concept of social and tax
advantages; all social and tax advantages were covered by the equal treatment
principle and dont necessarily have to relate to employment contract of the
worker
It was said in the case of Even that social advantages are those which, whether or
not linked to a contract of employment, are generally granted to national workers
primarily because of their objective status as workers or by virtue of the mere fact
of their residence on national territory
Family members
People are more likely to move if they can take their family members with them;
encourages people to take up free movement opportunities
Not a requirement that family members live under the same roof, as Diana makes
clear they could still qualify
However in Reed the court said that cohabitees werent included in the definition
of spouse
In Baumbast the court decided that the EU citizenship rights to movement are
directly effective. It would be disproportionate to refuse right of entry to family in
this case
Derogations from free movement
These can be found in Articles 45(3) and (4) TFEU and elaborated in Directive 2004/38
Justification must be fit for purpose of achieving that objective and shouldnt go
beyond what is necessary; restriction must be proportionate and must not go
beyond what is necessary to achieve the aim being pursued, as stated in Bosman
Article 45(3) allows member states to derogate from the principle of free movement on 3
grounds:
1) Public policy
2) Public security
3) Public health
The list in Article 45(3) is much narrower and shorter than the list of derogations for goods
in article 36 of the treaty
This list is exhaustive and so the court cannot add to the treaty list, but the
purpose of the express derogations is to ensure that member states can protect
their national interests should they need to do so; can assert their sovereign right
to limit movement in important circumstances for important reasons where they
can be justified
All measures adopted on grounds of public policy or security shall comply with the
principle of proportionality and shall be based exclusively on the personal conduct
of the individual concerned
Cannot be invoked to serve economic ends, and that past criminal convictions are
not in themselves grounds for taking such measures
Court accepts that public policy might be different in different member states
Bouchereau concerned a deportation of a French national following conviction for drugs.
Court came up with a test which goes along the lines that the concept of public policy
presupposes what the court says is the existence of a genuine and sufficiently serious
threat to the requirement of public policy and affects one of the fundamental interests of
society
Simple infringement of the law in the host state (infringement of the social and
legal order, in this case drugs) wouldnt necessarily be enough to justify measures
on public policy grounds
Held that personal conduct of the individual must represent a genuine, present,
and sufficiently serious threat affecting one of the fundamental interests of
society. And that general preventative measures, or justifications isolated from
the particular facts of the case, are unacceptable
A particular difficulty arose in the older case law between conduct which isnt illegal in
the domestic provisions of the member state seeking to claim the benefit of article 45(3):
The case of Van Duyn concerned a Dutch national who was refused entry to the UK
as she wanted to work with the Church of Scientology. Under UK law, membership
of the church of scientology wasnt unlawful/illegal but the court accepted a
public policy argument put forward by the British authorities that the church and
its ideology was as harmful to society and the social order, and so the court said
that the personal conduct of Van Duyn didnt necessarily need to be unlawful in the
host state in order for movement to be limited
ECJ ruled that a member state need not criminalise an organisation the
activities of which it considers to be socially harmful, in this case the
church of scientology, in order to justify taking restrictive action against
non-national members of the organisation on grounds of public policy and
security
Where conduct was deemed to be socially harmful, the host state would be
able to limit the persons movement
The above case contrasts with Adoui and Cornuaille which shows that the public
policy derogation shouldnt be made out where the conduct isnt unlawful. This
case concerned 2 French prostitutes who were refused permission to reside in
Belgium on public policy grounds (disreputable conduct) even though prostitution
wasnt prohibited in Belgium
o
In this case the court said such discrimination was unlawful and the member
states were required to treat migrant workers in the same way as their own
national workers
Where the same conduct on the part of nationals wasnt being sanctioned,
then member states couldnt invoke public policy sanctions
ECJ ruled that a member state may not expel a national of another member
state from its territory or refuse entry by reason of conduct, in this case
suspected prostitution, which, when attributable to its own nationals, did
not give rise to measures intended to combat such conduct
Need to show that the member state adopts with respect to the
same conduct on the part of its own nationals repressive measures
or other genuine and effective measures intended to combat such
conduct
Measures taken by the member state must be proportionate to whatever the public policy
aim/justification is being pursued.
An example is the Donatella Calfa case where Greece had expelled the named
person for life on the grounds that she had been convicted of drug offences.
o
Court said that here somebody could be expelled for a criminal offence
provided that their conduct constituted a genuine and sufficiently serious
threat
Under Greek law, foreign nationals were automatically expelled for criminal
conviction and this was a blanket provision and application so that there
was no consideration of the personal conduct and situation of the
individual; no scope to consider.
Court found that Greek law was contrary to EU law because it was a blanket
provision which didnt allow for individual consideration of each person in
each case and whether or not there was a genuine and sufficient threat
posed by the individual
Court looked at the issue of proportionality and said that because EU law
does allow for an individual to be deported, then it also allows for less
severe sanctions and measures to be taken against an individual, such as a
restriction on their right of residency
There is also now an increasing interaction of 45(3) and fundamental rights issues. Member
states are also now subjected to a human rights test when they seek to make public policy
derogation:
In Orfanopoulos the court emphasised that the host state must take account of
fundamental human rights when deciding to deport a migrant
o
As soon as somebody has family in the host state (particularly children who
havent lived elsewhere) it becomes increasingly difficult to deport that
person; right to family life is a very important trump card which migrants
can play in this balancing exercise between state interests and the interests
of the individual
Much of the above law is consolidated in directive 2004/38 and these provisions make it
clear that individuals have to be looked at as individuals; particular circumstances,
conduct, threat they pose etc must be looked at individually
Article 27 of the directive echoes the Bouchereau decision and stress need for
measures to be exclusively based on personal conduct
Article 28(2) of the directive reflects how it is now particularly difficult for a member
state to expel union citizens or their family members, irrespective of nationality, who
have the right of permanent residence except on serious grounds of public policy or public
security
Someone who has 10+ years residence or is a minor may only be expelled on more
serious reasons given for the want to expel the person
The 2004 directive mirrors the position under the case law
Public service derogation
Member states may attempt to put nationality restrictions on posts in the public service.
The ECJ has sought to curb the scope of such restrictions and has been especially resistant
to any generic classification of reserved posts. It has adopted a functional approach to
the responsibilities of particular jobs
Some member states have tried to define public service in a very broad way so as
to be able to reserve more jobs for their nationals; court has tried to stamp on this
tendency to such broad definitions and has been resilient against any attempts to
limit public sector jobs to nationals
Test the court applies is a functional one which looks at the function of the position sought
to be protected, and the definition is contained in Sotgiu
One should examine the duties which the post entails, the activities actually
performed by the post-holder, and the exception will only apply if the post holder
possesses a power of discretion in regard to individuals or promotes national
interests (such as internal/external security of the state)
Court said in Commission v Belgium that the jobs envisaged by Article 45(4) TFEU involve
exercise of powers conferred by public law where those powers are designed to safeguard
the interest of the state or other public authorities
Court said that local authority employees who were plumbers, carpenters,
electricians and gardeners didnt qualify for the exemption; these werent
intrinsically connected with the interests of the state
In Anker the court did uphold in principle a German law which required the post of master
of a fishing vessel flying the German flag that such a person should be German, the court
did uphold that requirement where the job entailed duties connected with ensuring safety
and the exercise of police powers
Procedural safeguards
Protection for those seeking to rely on EU rights has been developed in the secondary
legislation and in the general principles revealed by the ECJ.
These are essentially procedural requirements which need to be followed if a state wishes
to expel someone. These derive from the case of Haylens which concerned a football
trainer and their diplomas as recognised in other member states. He wasnt given any
reason why his qualifications werent regarded as equivalent
Individuals who are subject to an adverse decision which affects their right of
movement have the right to be given reasons as to why their right is restricted and
must have a right of access to judicial procedures in the host state (must have
recourse to justice) and the right to seek review of that decision
since free access to employment is a fundamental right which the treaty confers
individually on each worker in the community, the existence of a remedy of a
judicial nature against any decision of a national authority refusing the benefit of
that right is essential in order to secure for the individual effective protection of
his right.
FREEDOM OF ESTABLISHMENT AND FREE MOVEMENT OF SERVICES
This area governs the movement of self-employed persons (people who work for
themselves as opposed to somebody else)
In regard to establishment
Article 49 TFEU prohibits restrictions on the freedom of establishment of nationals of a
member state in the territory of another member state. It also entails the right to take up
and pursue activities as self-employed persons and to set up and manage undertakings
(companies) under the conditions laid down for its nationals
the capacity to set up companies under the conditions also laid down by the host
state for its own nationals
This is the equivalent of article 45 for workers and article 34 in relation to free
movement of goods; makes the point that restrictions on the freedom of movement
are prohibited
A legislative programme by the council for the mutual recognition of diplomas, certificates
and other evidence of formal qualifications was envisaged by Article 53: Directive 2005/36
In regard to services
Article 56 TFEU prohibits restrictions on the provision of services between member states,
whenever a cross-border element is present; whilst Article 57 goes on to define services
as:
the person providing a service may, in order to do so, temporarily pursue his
activity
under the same conditions as are imposed by that State on its own nationals
A movement of services within the scope of the article may also occur without the
provider or the recipient moving, for example, where the provision of the service takes
place by telecommunication or electronically
Treaty provisions governing the free movement of services are residual, in that
they apply only insofar as the provisions concerning capital, persons, or goods do
not apply
Service providers provide services in a more fluid manner in another member state, which
may involve the provider moving to the host state but it might equally not involve such a
move
Sometimes it isnt the service provider which moves, but the service itself which
crosses the border which is becoming increasingly common following the rise of
internet communication etc
Case law has expanded the notion of service provision under article 56
Overview of services and establishment:
Article 49 concerning establishment of
Self-employed individuals
Service provider
Service recipient
Service itself
(basic principle still remains in that something has to move across the border in
order for this provision to come into play)
Key issues in the relationship of these provisions
Court made the above notion clear in the case of Gebhard in which it says that the
situation of somebody who moves to a member state in order to pursue an activity
in that state is governed by either workers, establishment or services and that
these are mutually exclusive.
This is a case about a German lawyer who had chambers already in Germany and
basically went on to establish a set of chambers in Milan. He set himself up as
avvocato but he was then suspended by the Milan bar for practicing under the title
without being registered with the Italian bar. This rule applied to nationals and
non-nationals alike and so was a non-discriminatory rule.
One of the issues which arises is what is his status and so where can he
challenge this restriction to exercise his profession in another member state
Court held he was established in Italy as he was pursuing his profession on a stable
and continuous basis on the economic life of a host state
Italian rule was liable to make it more difficult for him to exercise this profession
and is likely to hinder his exercising of his fundamental freedom of establishment
in the host state
Court roots for establishment on the basis that it is a more permanent basis he is
trying to assert and services are more of a temporary nature.
What should be looked at is the duration of the provision of the service, its
regularity, periodicity, continuity.
The fact the provision of services is only temporary doesnt mean the
provider cannot equip themselves with whatever infrastructure they might
need to operate in the host member state
This decision is important for the purposes of distinguishing between the freedom
of establishment principle and the right to provide services on a more temporary
basis in another state
o
Set out the distinguishing factors between services and those of a temporary
nature
o
The fact that the provision of services is temporary does not mean that the
provider of services .may not equip himself with some form of
infrastructure in the host MS.
As to the scope of the services rule in covering provision and receipt of services:
The Vansbinsbergen decision again concerned lawyers and a Dutch lawyer who had
moved to Belgium during the course of the proceedings and was then told he no
longer had the right to argue his clients case in the Netherlands
In Luisi and Carbone it was held that the freedom to receive services from a
provider from another member state is the necessary corollary and the counterpart
of the right to provide services and is therefore covered by the treaty despite not
saying explicitly that civilians are covered
Court found that abortion was a medical service and did therefore fall
within the scope of the service. But in this case due to the lack of an
In the case of Schindler, the matter at hand was the provision of a lottery and
whether it constituted a service under EU law. In this case the Schindler were
agents of a public body which organised lotteries in Germany and sent
advertisements to the UK inviting people to participate in the German lottery and
were prosecuted what was then the UK ban on lotteries
o
In Lara Finnish law granted the exclusive right to operate slot machines in Finland
to a Finnish public body with the revenue going to the state. The effect of this was
to prevent a British company from operating its slot machines in Finland
o
Might have been different had the abortion clinic been paying the student
union to distribute information
This case also shows that if his right to family life is taken away so to is his
right to free movement
Quite a broad expansive application of service provisions. Court expands its notion
in order to catch as many people as possible
ECJ ruled early on in the case of Walrave and Koch that the Treaty rules applied not only
to the action of public authorities but extends likewise to rules of any other nature aimed
at regulating in a collective manner gainful employment and the provision of services
Discrimination and non-discriminatory obstacles
It is now clear that the rules on establishment and services may be applied to nondiscriminatory obstacles
It was said in the case of Grabner that the definition of a restriction under Article 49 and
56 TFEU are all measures which are liable to prohibit impede or render less attractive the
exercise of those freedoms, must be considered to be restrictions
Repeats the idea from Bosman that non-discriminatory obstacles which create a barrier
and a reason not to move is caught potentially by the articles and therefore needs to be
justified
Therefore, Grabner made it clear that a restriction can only be justified if they satisfy 4
conditions:
Suitable for securing the attainment of the objective which they pursue;
In relation to establishment
Krause concerned a German student who complained he wasnt allowed to use the title
LLM without prior authorisation from the German authorities on his return to Germany;
wouldnt have needed the authorisation if he had got his masters from a German
university
Discrimination lies in the fact that he has received his education and training in
another member state and has exercised his right of movement but then
discriminated against on his return to his home state
Court feels that Article 49 precludes any national measure governing the decisions
under which an academic title gained from another member state can be used;
where the national measure is likely to make it more restrictive or less attractive
to move in the first place then that restriction is one within the scope of the treaty
and caught by it
In Gebhard, which concerned a German lawyer who set up chambers in Milan and was
suspended by the Milan bar because wasnt registered, the ECJ acknowledged that the
provision of services didnt necessarily cease to be temporary simply because the provider
might need to equip herself with the necessary infrastructure
Relevant criterion isnt the mere existence of an office in a member state, but
rather the temporary or permanent nature of the economic activities carried on
there
Also in this case (in regard to freedom of establishment), the ECJ declared that the
same principles underpin all of the treaty provisions on freedom of movement and
stated that the provisions on goods, services, workers and establishment should be
similarly construed
o
Shows how any national rule which is liable to hinder or makes less attractive the
exercise of the fundamental freedom of establishment (or any of the other
fundamental freedoms) may violate the treaty unless it is justified by an
imperative requirement and applied in a proportionate and non-discriminatory
manner
Couple in the case decided they would set their company up in the UK where the
restrictions were less onerous but never traded in the UK, but still traded in
Denmark
Danish authorities werent happy with the situation and heralded it to be an abuse
of the system
Court found the couple were not abusing the system and were simply making use of
the options available to them under the treaty
o
In the present case are rules governing the formation of companies and not
rules concerning the carrying on of certain trades, professions or businesses
However, the fact that a national of a member state who wishes to set up a
company chooses to form it in the member state whose rules of company
law seem to him the least restrictive and to set up branches in other
member states cnanot, in itself, constitute an abuse of the right of
establishment. Right to form a company in accordance with the law of a
member state and to set up branches in other member states is inherent in
the exercise, in a single market, of the freedom of establishment
guaranteed by the treaty
They were doing only what the treaty encouraged them to do and the couple in
this case hadnt carried out any abuse of the system
Danish rules which were requiring them to incorporate their company in Denmark,
those rules were held to be an obstacle to freedom of establishment in another
member state
Court also took into account proportionality in regard to the Danish argument that
they were trying to protect creditors
In Commission v Belgium, a Belgian law was concerned broadly about security firms and
internal security services and said that individuals had to have prior authorisation in order
to operate a business which fell within the scope of the law. In order to obtain prior
authorisation there were a number of conditions including the fact that people working for
the company and the people in charge of the company had to have their residency in
Belgium
Court said that the residency restriction is a restriction within the defintion of
freedom of establishment and free movement of workers and that it couldnt be
justified even by a need to check the background and whereabouts of workers and
employees (argument by Belgium) given the nature of this blanket restriction
There was no requirement in the general interest or public policy that could justify
this restriction
Establishes that, despite the lack of harmonisation of the laws governing the
connecting factor for incorporation, a company which is legitimately incorporated
in one member state and which moves its centre of administration to another state
cannot in those circumstances be denied recognition of its legal personality by the
latter
Anything which looks like a dual-burden rule which creates extra obstacles for a person or
makes it harder for them, constitutes a restriction
In Cadbury Schweppes regarding companies and their establishment, there was a British
law which said the profits of a foreign company in which a UK resident company owned a
holding of more than 50%, would be subject to tax in the UK when the corporation tax in
the other foreign country was less than ers of the rate in the UK
Court reiterates the Centros line and says the fact a company establishes itself in
one member state in order to benefit more favourable legislation in that state, this
doesnt constitute a breach of freedom of establishment
In Viking the court found that Article 49 was applicable to the situation at hand. Viking
was a large ferry operator which under Finnish law, ran ferries between Finland and
Estonia. Under Finnish national law and the terms of a collective bargaining agreement,
Viking was obliged to pay its crew wages/salaries at the level applicable in Finland.
Estonian crew would have got wages significantly less than in Finland; ferry operator was
running at a loss due to competition and sought to enter into a new collective bargaining
agreement with the trade unions in those new member states (Estonia or Norway)
Court says that the activity of trade unions is potentially a restriction within the
scope of the treaty
o
The right to take collective action, including the right to strike, must be
recognised as a fundamental right under EU law
The right to take collective action was not an absolute right and it could
lawfully be subject to restriction in certain circumstances
Application:
o
In regard to services
Before we move onto cases, must be noted that article 56 indicates that in order to
benefit from the right to provide services, the person in question, natural or legal, must
already have a place of establishment within the EU and, if a natural person, must possess
the nationality of a member state
In Sager the license would be granted on conditions that one had qualifications either as a
lawyer or patent agent; court reiterated its position on non-discriminatory obstacles on
the freedom to provide and receive services
Art 56 requires not only the elimination of all discrimination against a person
providing services on the grounds of nationality,
But also the abolition of any restriction, even if it applies without distinction to
national providers of services and to those of other MS,
A person who is established in one member state and who provides services in
other member states should be required to comply with all the detailed regulations
in force in each of those states: to accept such a proposition would be to render
the notion of a single market unattainable in the field of services
I do not think it can be right to state as a general rule that a measure lies wholly
outside the scope of the article simply because it doesnt in any way discriminate
between domestic undertakings and those established in other member states. If
such a view were accepted, it would mean that restrictions on the freedom to
provide services would have to be tolerated, even if they lacked any objective
justification, on condition that they did not lead to discrimination against foreign
undertakings
Justifications for restrictions under article 56, Sager again stated that:
The freedom to provide services may be limited only by provisions which are
justified by imperative reasons relating to the public interest.
And they must not exceed what is necessary to attain those objectives.
o
In Alpine Investments it wasnt the person who moves but rather the service which crosses
the border and this case concerned Dutch restrictions on code calling in order to provide
financial services to people both in the Netherlands and outside; court found that this
Dutch restriction was caught by Article 56 as it created an obstacle and hindrance to the
potential provision of services in other member states
According to the ECJ the prohibition deprived the operators of a rapid and direct
technique for marketing and for contacting potential clients in other member
states, thus restricting the free movement of services
Services offered over the phone are caught by the scope of Article 56
The ECJ said that a prohibition such as that at issue is imposed by the member
state in which the provider of services is established and affects not only offers
made by him to addressees who are established in that state or move there in
order to receive services but also offers made to potential recipients in another
member state. It therefore directly affects access to the market in services in the
other member states and is thus capable of hindering intra-community trade in
services
In Lara concerning the Finnish law regarding slot machines which granted exclusive rights
to run the operation of slot machines to a Finnish public body
This was held to be an obstacle to other service providers despite not being
discriminatory as even other domestic providers couldnt provide them
In Deliege, the case was about international Judo competitions and therefore dealt with
cross-border sporting activities. Court found that the rules governing the activities could
affect the decision of services and could fall within the scope of the treaty
Court finds that sporting activity does generally fall within the scope of the treaty
and goes on to say that national selection rules in this particular case which meant
that a competitor couldnt provide their services in another member state, in this
particular case this didnt in itself constitute a restriction within the scope of the
treaty
Rules on participation was inherent in the sport and didnt amount to a restriction
here; sporting rules more generally are covered by the scope of the treaty
In Luisi and Carbone the court held that recipients of services could come under
the scope of the treaty; as recipients of services their activities were covered by
the treaty
There are differences in the type of systems which offer health care services; disparity
between member states as to how health care is funded. 2 significant rulings in this area:
Geraets-Smits was a case about a Dutch national suffering from Parkinsons disease
who sought reimbursement of the costs of her medical treatment which she had
undergone in Germany and which she claimed was better than the treatments
available in the Netherlands. Reimbursement was refused on the grounds that
satisfactory treatment was available publically in the Netherlands and hadnt
received prior authorisation to have her treatment in Germany
o
Court found that the Dutch rules which required the patitent to seek prior
authorisation of any treatment abroad, these rules potentially deterred
patients from seeking treatment in other member states and were
potentially an obstacle/hindrance and therefore constitutes a barrier to the
receipt of services
In principle these were restrictions which fell within the scope of the treaty
They could be justified if there was a need to ensure proper planning and
financing of the service
Raise questions as to the rights of the patient and the need of the state to ensure
they have a properly functioning health care system
In Watts (a UK case) the case was sparked by a woman whos son was a journalist
who was concerned about this cross-border access to health care. She was a UK
national who had considerable delays under the NHS when she tried to obtain a hip
replacement operation. She went to France and paid for her operation and sought
reimbursement when she came back to the UK
o
Court said that Article 56 required her to be reimbursed and found in her
favour
Her reimbursement should include not only the cost of the operation but
also cost of travel and accommodation
To justify this finding the court said patient waiting times, even under a
public health care system, shouldnt exceed a period that would be
acceptable in the light of objective medical assessments of the clinical
needs of the patients
Case law on health care does apply equally to our public health care
system; blanket use of waiting lists to cope with patient demand isnt
appropriate, has to take account of individual circumstances
Carpenter was a case where there was a tenuous link with a service provision concerning
right of an EU citizen and his third country wife.
Links service provision with fundamental right to family life and in this case saves a
3rd country national from deportation
The case of Omega concerned a ban on the use of lasers in games described as killing
games. The German ban was introduced in the name for respect for the principle of
human dignity; German constitution is highly protective of fundamental rights and respect
for human dignity was the first article of German basic law just as it is in the EU Charter
of Fundamental rights
This of course restricted the rights of provision of goods and services of companies
who provided the machinery
Court says that the protection of fundamental rights is a legitimate interest which
justifies a restriction on the obligations imposed by EU law; reiterated
Schmidberger in the need for balance between economic freedom and individual
rights
o
Court found that industrial action falls within the scope of the treaty
Restriction in this case was found to fall within the scope of Article 56 and fall to
be justified in the same way as Viking
Therefore
Court takes a very broad view on what amounts to a restriction in the provision of services
and freedom of establishment. Counterpart to this is the broader justification that
member states can put forward to explain a restriction on a public interest test.
Provided the restriction is proportionate and fits the objective being sought
No Keck type ruling; no moment for workers or establishment or services which has
sought to narrow the scope of the treaty provisions; deliberately being kept very
broad
What the AG is saying on page 32 of handbook, the rights include not just the right
to move and provide services and establish themselves, but include all other
aspects linked in any way to the pursuit of these activities.
o
Anything which goes towards making it more difficult for people to move
Professions which require the exercise of official authority essentially gets at the
public service test; may be a justification for restricting those services to nationals
Article 62 TFEU: the same provisions (Arts. 52 and 51) apply to services
For the interaction of establishment, workers and services in the context of the public
office exception, the following cases should be examined who all are concerned with
state rules governing private security activities
In Commission v Spain the court said that merely making a contribution to the
maintenance of public security didnt constitute an exercise of official authority
Courts are obliged to consider proportionality, and also examine fundamental rights as the
Carpenter case demonstrated in the context of considering the right to family life
People who exercise their rights arent abusing the system but merely taking
advantage of what is on offer to them
Recognition of qualifications
Directives introduced took many years to agree between the member years;
eg the directive on architects took 17 years to get the member states to
agree on what the professional requirements were for professional
architects across the union
Courts jurisprudence
Court steps in to try and regulate this area and speed up expedience and subsequently the
legislature has also tried to provide a legislative framework for mutual qualifications.
Jurisprudence is very similar in approach especially to the free movement of goods in that
the court has taken a negative integration approach using the principle of mutual
recognition, like in Cassis, that one member state should mutually recognise what is
lawful in other member states
Nationals may in appropriate circumstances rely on Article 49 against their own state, and
also the Article prohibits not merely unequal treatment but also any unjustified obstacles
to freedom of establishment
In Reyners the ECJ ruled that Article 49 was directly effective. Reyners was a Dutch
national who had obtained his legal education in Belgium and who was refused
admission to the Belgian bar solely because he lacked Belgian nationality
Court said this breached Article 49 of the treaty, and this case also decided
for the first time that Article 49 had direct effect and therefore allowed an
individual lawyer to challenge the states restriction in such a case
The ECJ held that the Article laid down a precise result which was to be
achieved by the end of the transitional period, namely the requirement of
non-discrimination on grounds of nationality
In Thieffry, the person was refused admission to the training stage as an advocate
at the Paris Bar on the ground that he lacked a degree in French law. According to
the ECJ, since he had already obtained what was recognised in France, for both
professional and academic purposes, to be an equivalent qualification and had
satisfied the necessary practical training requirements, the state authorities were
not justified in refusing to admit Thieffry to the bar solely on the ground that he
didnt possess a French qualification, despite the absence of EU directives in the
field
In Heylens the ECJ ruled in the case of a Belgian football trainer working in France
whose application for recognition of the equivalence of his Belgian diploma was
refused by the French ministry of sport, that member states were entitled, in the
absence of harmonising directives, to regulate the knowledge and qualifications
necessary to pursue a particular occupation
Having regard to the nature and duration of the studies and practical
training which the diploma certifies that he has carried out.
They said that member states must take into consideration the diplomas,
certificates and other evidence of qualifications which the person
concerned has acquired in order to exercise the same profession in another
member state by making a comparison between the specialised knowledge
and abilities certified by those diplomas and the knowledge and
qualifications required by the national rules
a course of study
or practical experience.
Therefore the national authorities must consider any education and training received by
the holder of the diploma or certificate and must compare the knowledge and skills
acquired with those required by the domestic qualification
Effect was that a member state could no longer simply refuse someone entry to a
profession or to practice a trade solely on the ground that he or she lacked the
domestic qualification, even where there was as yet no domestic recognition of the
equivalence of the foreign qualification
Legislation
What was then the EC adopted directive 89/48 which provided a general system of
recognition for diplomas obtained through higher education, where the course of
study had lasted for at least 3 years
o
Court confirmed, following this directive that for courses which were less
than 3 years, then the case law on mutual recognition would apply. Said in
the case of Arantis.
Where a member state had failed to implement the directive within the
time limit that, in conformity with the doctrine of indirect effect, that any
national legislation should be interpreted consistently with the directive
Directive 92/51 OJ 1992 L209/25 provided for a similar framework for mutual
recognition of education of a shorter duration, or of a different type, than the 3
year period under directive 89/48
qualifications. Aim of this directive was to maintain the guarantees afforded by each of
the prior recognition systems and at the same time to create a single, consistent legal
framework based on further liberalization of the provision of services, more automatic
recognition of qualifications and greater flexibility in the procedures for updating the
directive. General rule is enshrined in Article 4(1):
And to pursue it in the host state under the same conditions as its nationals.
Personal scope:
o
Article 5 of the 2005/36 directive is in regard to the ability to provide services in another
state (title 3)
Compensatory measures
the training is one year shorter than that required by the host MS
If
Directive 2006/123 OJ 2006 L376/36, known as the general services directive was
adopted following a protracted and controversial gestation period. It aims to liberalise
services across Europe. One of its central tenets is the country of origin principle,
according to which a service provider is subjected only to the law of the country in which
Case law has already set up the scene for mutual recognition, but the legislature
has introduced a separate directive 98/5 which seeks to regulate the practice of
being a lawyer in a host state
Can give advice on the law of your home state, on the law of the
host state (in which you are not qualified) and on European and
international law. In order to do this you simply have to register with
the bar, council or equivalent in that host state without any need for
an adaptation period
2) In order to acquire the professional title in the host state, a migrant lawyer
who has practiced in the host state for at least 3 years, can then seek
admission to the profession in the host state