LAW AND POLICY OF THE EU

PART 1: EVOLUTION AND STRUCTURES

Provides an overview as to the manner in which the EU has developed from in its original
inception as the EEC and the EC, as well as the manner it operates and why it is so
significant, along with the political, economic, social and legal pressures which affect its
evolution. Overarching concept is that the EU is a work-in-progress that is evolving and
changing, as opposed to a fixed project with a specific destination

THE EVOLVING EUROPEAN PROJECT: FROM EEC TO EU AND BEYOND

The EU as an evolving project
The founding treaty was the Treaty of Rome (EEC Treaty) in 1957 which sought peace,
stability and economic progress among 6 member states
Since 1957 there has been an expansion:

Now 27 member states, demonstrating a territorial enlargement

Has wider political and social goals, such as

o

A deepening legal order

Creation of the European Union 1992 (Maastricht) and new competences

The Lisbon Treaty settlement in force from 1st December 2009

Evolving Economic Integration

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:

Free trade area (no internal border tariffs)

Customs union (same as above, plus common external tariff)

EEC:

Common market (same as above, plus free movement of goods, labour, services
and capital)

EU and beyond:

Economic and monetary union (including the common currency)

Multi-speed? Federal state? Or a break-up?

Legal evolution: Treaty milestones

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:

Treaty of Rome 1957 founded the EEC

The single European Act 1986 (re-)launched the single market

Maastricht Treaty 1992 established the EU and renamed the EEC as EC pillar
within the EU

Amsterdam Treaty 1997 amended the pillar structure

Nice Treaty 2000 prepared further enlargement

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

Pillars (2) and

(3) were added
so
as to lead to
the EU being
treated as an
international corporation whereas pillar (1) was the primary means of giving
citizens enforceable rights
(1)
European
Community

(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?

Pillars could be seen as mere symptoms of evolving integration

o

Pillar (1) more integrated in political and legal terms as it provides for
supranational decision-making, review by courts, individual rights, etc

Pillars (2) and (3) more intergovernmental in decision-making processes;

greater powers retained by member states; less reviewable

The Lisbon treaty ended formal pillar divisions

o

However the CFSP established through pillar (2) still has special rules

All elements are now EU and EU Law; Lisbon encapsulated everything

under this banner of EU law and ended formal structures

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:

Through political disputes as to the direction of the EU

o

Was it in regard to social or market directions?

Unwieldy decision-making structures after 2004 enlargement

Conflict over constitutionalising the EU

The failure of the Draft European constitution in 2004

o

Agreed by MSS, defeated by France & Netherlands referenda in ratification

process

The Lisbon treaty:

A compromise after the failure of the 2004 draft constitution

o

Ratified after original Irish referendum rejection

Tries to lose (hide?) the constitutional bits

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

Is the EU primarily about member states or is it actually about an evolving citizen

project in which the court uses people to implement certain laws and uphold their
rights?

THE EUS TREATY BASIS: WHAT IS IT FOR? WHAT CAN IT DO?

It must be borne in mind that the EU is not a unitary state and that its powers are
constrained by its treaty foundations which today comprise of the TEU and TFEU who are
given the same legal value.

It has no inherent powers but it does have legal personality, competences, political
and legal institutions and decision-making processes

It replaces and succeeds the EC

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

The ECJ in Luxembourg takes a substantive view as to the functions of the EU

EUs legal base since 1st December 2009

(1) TEU:

Contains the values, principles and CFSP

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:

Contains the detailed operational rules

o

Such as free movement, citizenship, competition law

(3) EU Charter of Fundamental Rights:

Same legal value as TEU and 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

What is the EU?

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

Treaties make no claim/objective towards being a state/federal state, but does

share characteristics

Whilst the EU doesn't have a government in essence, it does nevertheless have

governance as the policies have impacts. This is a paradoxical institutional
arrangement

It is not a state or indeed a federal organisation, but is a unique entity

The values of the EU

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.

What kind of EU do these values represent? Advocate General PoiaresMaduro in Rottmann

observed that citizenship of the Union, enjoyed by all nationals of member states,

Presupposes the existence of a political relationship between European citizens,

although it is not a relationship of belonging to a people. On the contrary, that
political relationship unites the peoples of Europe. It is based on their mutual
commitment to open their respective bodies politic to other European citizens and
to construct a new form of civic and political allegiance on a European scale. It
doesn't require the existence of a people. But is founded on the existence of a
European political area from which rights and duties emerge.
Goals and Competences

The broad objectives of the EU are contained in Article 3 TEU:

One of the stated objectives was to maintain in full the acquiscommunautaire,

but the lack of a formal definition of this term leads to uncertainty in its
interpretation
o

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.

In other words, it extended beyond the formal acceptance of

community law to include rules that have no binding force,
indicative of the term having more of a political than a legal
meaning.

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 EU is not omnipotent and cannot do anything if it isnt in the treaty.

On occasions this leads to conflicts arising where it is unclear as to whether it is

the EU or the member state who have the capacity to adjudicate on a certain issue

Klamert writes in his article

o

No hierarchical relationship between the European Court of Justice and

other institutions; all have legislative competences evenly distributed
between them

When it comes to assessing which competence a measure should fall into, a

wide degree of discretion is left to the council, as well as to the ECJ in
review of its acts; not good for legal certainty

The ECJ has a tendency to put the emphasis on the objectives of a measure
to determine its legal basis

The limits of EU competences are governed by the principle of conferral in Article

5(1) TEU
o

Essentially if there is no treaty base, there is no EU power to act

This concept is reinforced by Article 4(1) TEU

The TFEU attempted to categorise competences according to 3 types:

1) Exclusive EU competences (Article 3 TFEU)
o

Such as competition law rules, common (external) commercial policy

2) Shared EU/MS competences (Article 4 TFEU)

o

Eg internal market, environment, consumer protection, energy

Anything not specifically listed in Articles 3 or 6

3) EU competences that merely support, coordinate or supplement the actions of

MSS (article 6 TFEU); EU acts in this category cannot entail harmonisation of MSSs
laws
o

This category compromises 7 areas, including the protection and

improvement of human health, culture, tourism and education
Limits to EU competence

The meaning of EU treaties is exclusively determined by CJEU (Article 19 TEU)

Due to the previous difficulty in finding the limits of EU competence, the

boundaries set out in the Lisbon Treaty were crucial.

The legitimacy of EU action: the power to act

In terms of supremacy issues: conflict between national and EU law over

competence

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

Case C-376/98 Germany v E Parliament and Council

Member states mutually wanted tobacco adverts to be banned

However there was a specific exclusion of EU competence in relation to the

manner in which the EU wanted to exert their power, and so thought they
could get around it by utilising another provision

Tried to play it in the sense that despite having public health

effects, they enforced their objective through means of harmonising
the market as it was a single market measure

(Then) Art 152(4)(c) EC excluded EC power to harmonise national laws

relating to public health [now Art 168(5) TFEU]

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

Not within the ECs single market competence either

o

Art 95 NOT a general legislative power

Directive too general to satisfy Art 95 conditions (establishment and

functioning)

Could adopt specific measures (eg banning Formula One tobacco

sponsorship)

Annuls directive for lack of ANY legal base under Treaty

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

As for avoiding conflict with member states:

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

MUST BE NOTED: for a case to proceed to the ECHR it must firstly

have a place in an EU treaty

Freedom of expression under ECHR

Free movement of services under (then)EC Treaty

The role of the Advocate General is to collect information and recommend a

solution to the case at hand; the court is not bound by it however. This is avery
useful function in terms of going into detail and the citation of academic
literature. AG Van Gerven gave his recommendation:
o

Information = service

Thus EC Treaty applies

But EC allows derogations in Treaty

Morality = recognised justification for limit to free movement

Irish rule allowed by EC law

The court of justice however felt:

o

Abortion = service

Info service

EC Treaty therefore not applicable

If no EC dimension, no reason to discuss ECHR

Irish rule not touched by EC law

Essentially says it is not an EU problem; perhaps a political move to avoid

conflict with domestic issues.

The case of Konstantinidis perhaps illustrated visions of Europe:

In this case, a Greek moves to Germany and sets up business (establishment

under EC Treaty). German law requires transliteration of business names and so his
name Christos K turns into Hrestos K and the question was whether he could
claim an infringement of any EC rights?

AG Jacobs:
o

Name is part of identity, a fundamental right

Identity recognised in international and national legal sources

civiseuropeus sum

No need to prove damage, EC law gives right to ones identity

The ECJ:
o

K exercised freedom of establishment (economic)

If misrepresentation of name causes damage, K has redress

No discussion of identity or fundamental rights

For national court to decide if K harmed

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

Approached politically sensitive questions in a befitting manner due to limitations

MSS trying to curtail Courts scope for interpretation by Lisbon settlement typology
of competences in Arts 3-6 TFEU

INSTITUTIONAL FRAMEWORK OF THE EU: WHO DOES WHAT?

This area revolves around questions as to how the EU acts effectively and delves into
whos who and how the law regulated and affects the power between different
institutions. It will also demonstrate what the institutional framework tells us in regard to
which actors are most important
and the extent to which the law plays a controlling or balancing role over them.
Introduction to the EUs institutions
Concerns a balance of powers as opposed to a separation:

As a result of the balance of powers, there are no executive or legislative branches

of the EU

Important changed brought about through the Lisbon Treaty

No need to read materials of decision making processes which pre-date the

Lisbon treaty as the treaty makes a significant number of changes to the
internal organisation of the EU institutions organisation and their powers

This treaty resolved many issues

Article 13 TEU states the purpose of the institutional framework

The Union shall have an institutional framework which shall aim to

promote its values, advance its objectives, serves its interests, those of its
citizens and those of the member states, and ensure the consistency,
effectiveness and continuity of its policies and actions.

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

Critical tests to measure the relationships of the different institutions are:

o

Supranational/intergovernmental character

Accountability of institutions to each other and democracy more generally

Participation in legislative process(es)

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?

Regarding participation, the role of the CJEU must be looked at in

terms of their influence on institutional change; the more you
integrate into the EU the more difficult the achievement of balance
becomes

Dynamics and factors that influence change

Many times, the relationship between different institutions is aggravated through

political matters. The law is about the control and exercise of power; power,
politics and accountability
The European Commission

The commission is the most multi-faceted of the institutions. Article17 states:

(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

This is the fundamental role of the commission

Places the commission at the forefront of policy development and

essentially defines its role as the catalyst for many legislative initiatives

(8) Makes clear that the commission, as a body, is responsible to the European
Parliament
o

Shows that whilst it is a very supranational institution, at the same time it

is the least democratically accountable; only responsible to the European
Parliament

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

Independence of commissioners is a key issue as it reflects the nature of the

commission

Nevertheless it exercises a great level of inter-institutionalism as it works with the

Council of the EU and the European Parliament demonstrating that despite
maintaining its independence it is committed to integration within an EU
framework.

Most important function is the power of legislative initiative, however through

political pressure they can be led to introduce/not introduce regulations or
directives

The commission also develops the overall legislative plan for any single year as well
as the development of general policy strategies

A certain degree of delegated power is also exercised by the commission; Article

290 of the TFEU elaborates on this idea in that the Council of the EU and European
Parliament delegate power to the commission to make further regulations in
particular areas

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

General affairs council as coordinator

o

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.

Voting varies: simple, unanimous or qualified majority (QMV) depending on Treaty

basis. Under Article 16(4) TEU, The Council shall act by a qualified majority
except where the Treaties otherwise provide.

By QMV it refers to the weighted votes allocated to member states. Such

weighted votes represent the population size and economic power of a
member state

However it if is clear that something is going to be approved then individual

QMV will not be utilised

Such voting systems (especially unanimity) are a means of analysing how

integrated the EU truly is; unusual to find situations where member states
exercise a veto except in matters of foreign affairs

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

Its functions set out in Article 15 TEU

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

No important internal or external developments can take place without being

considered first by the European Council

It also has a permanent and stable president who each have terms of 2 and a half
years, renewable once

Some Vague rules are set out under Article 15 TEU:

Shall provide the Union with the necessary impetus for its development.

Decisions are to be taken by consensus

President to chair it and drive forward its work

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.

Can also be seen as shackling the Council of the EU

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.

Consists currently of 754 MEPs

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

Still has problems as to whether or not it is compatible; in 2009 the German

constitutional court said due to the electoral deficits, the EP was not in a position
to make decisions on the supranational balance of states interests

Said that measured against requirements placed on democracy in states,

elections do not take due account of equality and the EP is not competent
to take authoritative decisions on political direction in the context of the
supranational balancing of interest between states.

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

In its current form, it exercises a great degree of legislative, budgetary and

supervisory powers

Also has the power to force resignation of Commission as an entire body, by way of
a two-thirds vote

The EU Legislative process:

There is no single process (determined by field of activity and relevant Treaty

Article base)
o

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

The end result is EU legislation in the form of a Regulation or Directive

Court of Justice of the EU (CJEU)

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):

One judge from each member state.

o

Term of office of the judges is 6 years but they can be reappointed

8 impartial Advocates General who give (non-binding) Opinions as to the legal

position and recommended outcome relevant to a particular case
o

AG is a full member of the court and participates at the oral stage of the
judicial hearing

Most important task of the AG is to produce a written opinion, which is the

reasoned submissions mentioned in Article 252 TFEU

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

The court provides a single collegiate judgment, with no dissents

Sit in Chambers (3 or 5) or as Grand Chamber (13)

Lower division = General Court (formerly the Court of First Instance)

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

Main jurisdictions of the Court of Justice are:

Infringement proceedings against Member states, brought (usually) by the

Commission or by a Member state (Articles 258-259 TFEU)

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

Art 340 actions against EU institutions for damages

Appeals against decisions of the General Court

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

It is the CJEU which adjudicates on the limits of EU competence as against member

states

Summary

Balance, not separation, of powers between EU institutions

Different institutions exhibit different degrees of supranationality, intergovernmentalism or democratic accountability

Who wins (European Council/European Parliament?) who loses (Commission?) as a

result of the Lisbon settlement

A system of governance, not government

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

Elevated legal status even though no legislative power

Initiatives for future Treaty change

European Parliament

Expansion of OLP role

The Parliament were given more responsibilities and more of a voice

in issues pertaining to the legislative process; been given a genuine
co-legislative function. Different areas of policy are transferred to
the OLP to which the Parliament has a stake in. The EU Parliament
was given an increased role in the legislative process meaning the
commission now had little choice but to ensure inter-institutional
cooperation. Whereas its power was previously an unconstructive
one of delay, following the Lisbon treaty they were bestowed with a
stronger and more constructive role in the drafting of legislation

Court of Justice

Gains jurisdictions

Result of Lisbon for the Court is that they acquire an extra

jurisdiction and the monumental jurisdiction of giving the Charter
the same rights as the treaty; opens up possibilities for the court to
use it in a manner of interpretation to assist the other treaties

Losers:
o

Commission

Formal power of initiative but increasingly told what to initiate

(from EP and European Council)

The commissions former power of initiative has decreased; lack of

democratic credibility has come home to roost. The political shift
couples with other legal dynamics point to a decrease of power

Council of EU

Rotating State presidency overshadowed by permanent President of

European Council

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

Challenges in evolving relations:

Framework Agreement on relations between the EP and Commission (see Art 295
TFEU)

Commission not to announce publically any initiative or proposal

without the authority of the EP

In the link you can see how the commission is bound politically to
the EP

Euro sceptics will argue the EP and commission produce legislation

which furthers integration

The identity problem of the new High Rep for FA (Baroness Ashton)
o

Vice-Pres of Commission AND Chair of Foreign Affairs Council: so who does

she work for?

Common view is that Baroness Ashton is working for the Council of the EU as
opposed to the commission

European Council/Council relations

o

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

Little in Lisbon re connection(s) between European Council and European

Parliament
o

Vacuum in treaties between connections of the European Council and

European Parliament

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

Over time, the number of procedures has begun to converge

Ordinary Legislative Procedure (OLP) now default system, but others

(special procedures) still exist

Variations in terms of which institutions participate, what type of vote is

required

Within the OLP the Council of the EU will exercise QMV

Turf wars break out between institutions

Existence of different procedures > disputes over which one is the right
one under the Treaties (turf wars)

OLP (pre-Lisbon co-decision) extended by Lisbon to new policy areas

The Lisbon treaty simplified legislative matters especially those surrounding

aspects of democracy

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

A particular treaty article must always be looked at as it is through such articles

that the legislative procedure applicable in certain areas will be specified

The OLP under Article 294 TFEU:

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

Stages set out within Article 294 of the TFEU

o

First Reading Second Reading Conciliation (in event of conflict) Third

Reading Special Provisions

Output of legislation is EU secondary legislation in the form of Regulations and

Directives

The EP perspective on OLP:

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.

The procedure emphasises compromise and dialogue so as to ensure the passage of

the legislative act

Double veto opportunity for EP

o

After 2nd reading, reject Councils common position

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

However, less than 1% of co-decision procedures pre-Lisbon were vetoed by

EP

But over 80% measures included EP amendments

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

In the absence of a single legislative procedure or rule as to voting requirements

then conflict will remain on the tables

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

Aim and content of the measure

If there is dual purpose, one of which is predominant, this ONLY must be the
base

If there are multi-linked objectives, none of which is predominant, then

base is ALL of them

Application of an objective criterion:

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

Directive on registration of animals and labelling of beef (anti-BSE measure)

Legal base: Agriculture (mere consultation of EP) OR consumer protection

(co decision)?

Courts answer:

contrary to legal certainty to take into account political relations

between institutions (unlike its Titanium Dioxide reasoning)

Agriculture the proper (sole) base

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

Latest example was in Case c-130/10 EP v Council (Al-Qaida Network) which

concerned an attempt by the EU to put economic sanctions in place against
specific terrorists
o

Only rule regarding EU Parliament in Article 215 TFEU is that they should be
informed

However, the EU Parliament felt it would have been better handled if

pursued under Article 75 TFEU so that they too could assert their voice. Also
argued that the OLP was the only procedure which protected fundamental
rights

So essentially the Council adopted sanctions under Article 215 TFEU

Restrictive measures under CFSP against individuals

Council to act by QMV

E Parl to be informed

But EP claimed wrong base and advocates use of Article 75 TFEU

EU Area of Freedom, Security and Justice

Anti-terrorism measures

Council and E Parl to act jointly under OLP

Grand Chamber ruled on 19th July 2012:

Arts 75 and 215 irreconcilable, so one must prevail

Framers of Treaties deliberate choice of limited role of E Parl under

CFSP

Rejects E Parl claim that fundamental rights protection requires use

of OLP

All EU institutions bound by EU Charter of FRs in making decisions

anyway

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)

directly applicable signifies that regulations are part of the

national legal systems without the need for separate national legal
measures

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

Binding as to result to be achieved by a specified implementation date, but

leaving MSS to achieve via national measures

Leave to the national authorities the choice of form and method as to how
to achieve the desired result

Directives also uphold effectiveness of the EU in that they need not be

addressed to each individual member state but are nevertheless binding in
terms of the desired result which is to be achieved by the respective
member state; gives the EU valuable flexibility

The ends which a member state is required to achieve are set out in
considerable detail

Directives lead to a variety of problems in terms of the domestic courts

view on how the result should be achieved

Problems with directives and compliance by member states:

An example is the Product Liability Directive 85/374

o

MSS compromise over approaches to liability of manufacturers for dangerous

products

Permitted a development risks defence to be available to MSS

Enacted by UK in Consumer Protection Act 1987

Commission infringement action against UK for failure to implement

directive properly

Commercial agenda in this case through the notion that UK wanted

corporate entities to remain in the UK and this decision was agreed only
due to a compromise by council

In Case C-300/95 Commission v UK

o

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

Commission took the UK to the Court for incorrect implementation of the

directive is it?

A reasonableness defence and so the court held that because

national courts are obliged to read the UK defence in a way
compatible with the directive. This meant that if the UK court
doesnt do so and provides a reasonableness answer then they arent
in breach

Soft law and the Open Method of Coordination (OMC)

Soft law is an umbrella term describing a number of decision-making models which
seeks to avoid the perceived weaknesses of hard, top down, EU level legislation
(such as what used to be called orthodox community method).

MSS Objections to hard law (Regs and Directives); preference for non-binding
soft law
o

Soft law is a means of promoting consensus and convergence by information and

communication
o

Encapsulates recommendations and opinions which do not have binding

force; national courts can however still make reference to these measures
by the EU

For example, seeking models of best practice across member states and
establishing consultive and review mechanisms for their dissemination

Eg Open Method of Co-Ordination (OMC)

o

Recognised as a working method since 2000 and applied to employment

strategy and various social policies

Informal, sharing (good) practices, consensus, guidelines for common action

etc; development of convergence by learning from others experiences

BUT, problems of accountability/predictability despite purporting to allow

and acknowledge diversity in different member states
Summary & Conclusions

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.

EXERCISING POWERS: THE PRINCIPLE OF SUBSIDIARITY

Subsidiarity is meant to address the question in regard to who acts in a situation and who
is in a better position to act. Examines the question of whether it should be the EU or
Member States that act in a particular situation.
The question as to who can act is often problematic in the political sense as it assesses
who has control in regard to making decisions:

EU doesnt possess exclusive competence, but often has shared competence

between itself and member states
o

The EU has competence (power) to adopt policies and legislation only in the
areas specified in the treaties.

EU and national governments retain joint competence in other areas, such

as consumer protection

Nevertheless national governments do retain some areas of exclusive

competence such as industry, culture and tourism

The Lisbon treaty attempted to categorise EU powers

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

According to Article 5(3)

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 institutions of the union shall apply the principle of Subsidiarity as

laid down in the protocol on the application of the principles of Subsidiarity
and proportionality. National Parliaments ensure compliance with the
principles of Subsidiarity in accordance with the procedure set out in that
protocol.

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

Subsidiarity requires that decisions be taken as closely as possible to the

citizen and that if action is taken at EU level as opposed to national/
regional/local level then it needs to be justified

This is only in regard to the exercising of competence as opposed to the

allocation of such competence

Political evaluation of legal principle when talking about application of

Subsidiarity

Origins of Subsidiarity as a concept

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

Means of balancing roles of different levels of government

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

Were considerable issues as to the member states signing up to EU provisions,

however this doctrine provided some degree of reassurance

Was it A Treaty too far? Expansion of EU competences into new fields

o

But subsidiarity regulates exercise of already determined powers

Said by some that Subsidiarity = the word that saved Maastricht

No repatriation of powers actually occurred under Subsidiarity as it was not about

allocation of powers but rather the exercise; nevertheless the treaty allowed politicians to
say and act in the manner of John Major in political context

The concept played a very useful role in political acts

There is an omnipresent tension between the desire to make Subsidiarity a reality

and the need to address problems at a European level so as to achieve EU
objectives; President Barroso of the commission made this point himself.

In regard to EU institutional application, the new protocol (Protocol (no 2) on the

application of the principles of Subsidiarity and proportionality) adopted by the Lisbon
treaty replaced 1997 version:

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

Art 5 draft EU legislation to contain detailed statement making it possible to

appraise compliance with Subsidiarity
o

Including reasons substantiated by qualitative and, wherever possible,

quantitative indicators

Theory is that there should be some impact assessment based on

quantitative terms

Member states want this due to their political ambitions and

reassertion of their power

Makes clear that sufficient reasoning must be in place so as to justify EU

action as opposed to leaving the matter to national bodies
Subsidiarity a political rather than legal value?

It must be asked if Subsidiarity has a legal function:

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.

May be difficult to determine legally what the better outcome would be

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.

Pre-Lisbon track record of judicial reticence

o

Discretion vested in EU legislators

How do you judge who is better placed to act?

Alternative review methods: conferral of powers principle, proportionality

Court of Justice and Subsidiarity why the reticence?

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.

Max 40 hours working week

Rest day=Sunday

Court rejects claims of Subsidiarity infringement

So, if Council thinks EU action warranted then it is?

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.

Case C-491/01R v Sec State Health ex parte BAT

o

Eliminating barriers between MSS cannot be sufficiently achieved by MSS

individually

Held that a single market couldnt be enforced if member states could do

their own thing

Most recent example is Case C-58/08 Vodafone and others v Sec State for
Business(Grand Chamber 8 June 2010)
o

Key case on retail and wholesale charges.

EU legislation on retail and wholesale charges for roaming mobile phone

networks

Arguments attempted to be made by Vodafone were that retail and

wholesale were different and retail intervention shouldnt have happened;
inclusion of retail framework was breach of Subsidiarity

Felt courts should have and could have left retail provisions to member
states

Judgment given in the case:

Subsidiarity does not call into question the powers of the EU as

interpreted by the Court

Recitals of the EU Reg clearly show interdependence of retail and

wholesale charges for roaming services

That interdependence means that the [EU] legislature could

legitimately take the view that it had to intervene... Thus, by reason
of the effects of the common approach...the objective pursued by
that Reg could best be achieved at [Union] level.

Once again clarified this is about regulating powers already in

place

Court simply asks question as to whether EU institutions

thought about decision

Still demonstrates the same soft touch!

The post-Lisbon rules

New Protocol
o

The Subsidiarity protocol contained in Protocol (no 2) of the Lisbon Treaty

applies only to draft legislative acts and doesnt cover delegated or
implementing acts; provides no measure for national parliaments to check
delegated acts even if it is possible that it may infringe Subsidiarity

Distinguished between existence of competence and the utilisation of such

competence

Can be seen as an acknowledgment that Subsidiarity works and has an

impact in a political context before legislation as opposed to after it has
been adopted

New procedure, involving national Parliaments in the drafting stage of EU

legislation
o

Lisbon treaty upgrades national parliamentary role in the legislative process

In effect, national parliaments are given a role of scrutiny (not a formal

legislative role). At the same time as the commission proposes matters to
the parliament, it refers matters to national parliaments to see whether or
not there are any recommendations

Aim is to give more recognition to the functioning of national parliaments

Commission must send all legislative proposals on the outset to the

national parliaments at the same time as to the union institutions

Article 4 of the Subsidiarity and Proportionality Protocol (n 94)

makes it clear how national parliaments must also be provided with
legislative resolutions of the European Parliament and positions
adopted by the Council of the EU

Specific reference to national Parls in Art 12 TEU (Lisbon)

o

National Parliaments contribute actively to the good functioning of the

Union

(b) by seeing to it that the principle of Subsidiarity is respected in

accordance with the procedures provided for in the protocol

National Parliaments in the Protocol:

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

National parliaments can therefore scrutinise and put forward opinions on

proposed EU legislation ensuring that Subsidiarity is applied

All EU bodies must do is take note and account of national parliaments views

The protocol imposes an obligation on the commission to consult widely

before proposing legislative acts

Commission must provide a detailed statement concerning proposed

legislation. Such a statement must contain financial implications of the
proposals and there should be qualitative indicators to show that the
objectives would be better reached through the EU as opposed to national
parliaments.

Article 4: Commission to send draft EU acts to national Parliaments at same time as

to Union legislator

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)

Art 7 Protocol: EParl, Commission and Councilshall take account of opinions of

natParls

Impact of the votes of National Parliaments:

The commission isnt politically in a position to disregard votes approved in this

manner; if there is a majority of some sort then they will undoubtedly be forced
into acting in some manner or another
Yellow card
o

Under Art 7(2) if a third of national votes are against legislation, the draft
must be reviewed by its initiator (the commission)

After such a review it may decide to maintain, amend or withdraw the

proposal and reasons for such a decision must be given

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

55% of Council or simple majority of E Parl can drop the measure

Empirical evidence post-Lisbon:

Picture is created that national parliaments arent making use of their scrutinising
functions:

Lack of use is down to Lack of co-ordination by national Parliaments

o

Insufficient to trigger yellow and orange cards

Some natParls not engaging at all (eg Nordic Parls)

On a number of occasions, Subsidiarity challenges were opposed by

other member states who felt the legislation consistent with the

Subsidiarity principle; showing a lack of uniformity between member

states and their perception of the use of EU powers on a range of
matters.

Only 10 out of 139 docs commented upon received responses from 4 or

more Parlous

Not always about legitimacy; desirability instead

Preponderance of Upper Chamber responses

o

Lower Chambers other political priorities?

Perhaps pressing issues of domestic nature. Domestic political

agenda may be too full for national parliaments to make great use of
this power

Eg House of Lords has sent all UK letters (using existing scrutiny cttee
procedures)

Continuing questions:

Enhanced legitimacy for EU law-making?

o

BvG judgment on the Lisbon Treaty

Nat Parls have (only)acquired scrutiny role; does not change EU institutional
balance in decision-making

Will national Parliaments be sufficiently organised to act together?

o

Representations limited to Subsidiarity comments

Any impact on Courts reticence?

o

Horsily (2012): a valuable principle [that] should be made to work much

harder.

Some feel the court must come out of its shell and hold the EU to account

Setting out detailed reasons for each parliaments reason to

disapprove on the EUs matters of Subsidiarity would undoubtedly
raise the level of assertion by national parliaments
Conclusions and the future

Balance politics/law impact of Subsidiarity

o

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

Lisbon involvement of national Parliaments in EU legislative process =

strengthening ex ante scrutiny

But lack of coordination among natParls; Often takes mutual disdain of an

issue to bring people together; perhaps this is the master framework behind
unity of the EU and member states

Will changes force more Court involvement or is Vodafone a clue to continued

reticence?

PART 2: THE EU LEGAL ORDER

Having established what the broad objectives of the EU are, and the structure of its
institutional framework, it is time to examine the special features which make the Union
its own legal order (Sui Generis). At least according to the court
It has been left to the CJEU to develop a raft of concepts and principles with which to
flesh out the character, application and accessibility of EU law; courts do so in the name
of effectiveness

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

Regulations and directives as a result of EU institutional law-making, such as the

OLP for example

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 EUS LEGAL ORDER AND SUPREMACY

Two primary questions to be asked:
1) Is the EU a legal system?
2) What is its relationship with national legal systems?
Is the EU a legal order?

The Treaties are silent on this question

o

Too controversial a question for the member states to want the EU to

address on political grounds

The Court of Justice has always taken the view that EEC/EC/EU law is distinctive
o

Neither international law nor national law

But a sui generis legal order

Why would the Court take this view?

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

Extent of conflict is a significant and continuing problem

o

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

Without coming to a theoretical solution, the two courts comes to a

pragmatic compromise

What is the courts perspective regarding the EU as a legal order?

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

In the case of Costa v ENEL

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

EU law is a primary source of law

In Opinion 1/91 Re the draft Treaty on a European Economic Area

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

The EU was heralded as a complete system of remedies

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

They key elements in building the EU legal order are therefore:

o

Limitation of Member State sovereignty

Supremacy of EU law over conflicting national law

Individual EU rights protected by national courts

Establishment of EU remedies

Entrenchment of EU fundamental rights protection

Reception in Member States parallel universes or worlds that collide?

The (failed) Constitutional Treaty 2004 would have acknowledged primacy of EU law;
however Declaration 17, attached to the EU Treaties, provides:

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

Not binding, but politically significant?

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.

Fiction of parliamentary sovereignty is essentially retained on the basis that EU law

only has supremacy because a national statute permits it to do so.

States with written constitutions adopt techniques to accommodate EU law

This has the effect however, that whenever there is a new treaty reform at EU
level clashes occur leading to litigation
o

Typically, fundamental rights protection clashing with national constitutions

or when new Treaties to be ratified (eg Maastricht 1992, CT 2004 and Lisbon
2009)

German court for example, has a tendency to say that individuals are better
off under their constitution as opposed to EU law

A classic illustration of acceptance of the Courts perspective of the supremacy of EU law

is in the Factortame saga:

Merchant Shipping Act enacted in UK nationality restrictions applied to boats

entitled to fish

(Then) EC Treaty included free movement rules, including freedom of

establishment, but the enactment of the Merchant Shipping Act had the effect that
Spanish Fishermen were prevented from fishing

There were 3 different cases, each concerning different topics

o

Compatibility: Did Merchant Shipping Act infringe free movement rules of

EC Treaty?

Court of Justice: MSA blatant violation of a fundamental principle of

the Treaty which stated non-discrimination on grounds of nationality

HoLdisapply Act (no power to repeal it), ie Act remains English law
but HoL to disregard it

Thus HoL applying supremacy doctrine; in accordance with

Simmenthal

Interim relief: No interim relief against the Crown in English law

English law: no interim relief possible against the Crown

Court of Justice: fishermen entitled to effective protection of their

[EU] rights of freedom of establishment (self-employed)

CJEW felt the HoL should find a way to protect EU rights of

fishermen; HoLdisapply the bar on interim relief

In effect, a new English remedy brought about from EU

obligation to protect EU rights

Damages: Action by Spanish fishermen against UK for serious breach of EC

law

Court of Justice conditions of EU principle of state liability

satisfied (see later work), ie an EU remedy.HoL award damages

As a result of this case law, clear you can sue a state which falls short of its treaty
obligation

EU law permeates through a variety of channels such as the invention of a new

national remedy as well as an EU remedy of damages which is accessible directly
by the persons concerned; complete assimilation of the supreme courts view and
the CJEUs ambitions for a legal order

Challenges from national courts:

Major challenges made by the German Constitutional Court

o

In Brunnerthe German court effectively stated how whilst the Maastricht

Treaty was compatible with the German constitution, they reserved the
right to rule out any EU provisions deemed to not be

This was softened in the T Port case whereby no challenge unless

established body of Court of Justice case law offending protection of
fundamental rights

A major judgment was made in relation to the compatibility of the Lisbon treaty
with German basic law in Gauweiler
o

Subjects Lisbon Treaty to scathing criticism for lack of democracy

Rejects idea of absolute primacy of Union law, which would be

constitutionally objectionable under the Basic Law

Said it merely confirms the legal situation in regard to the absolute

primacy of application of Union law, as interpreted by the Federal
Constitutional Court, but doesn't recognise it.

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...

It is no contradiction to the objective of openness towards European law if

exceptionally, and under special and narrow conditions, the Federal
Constitutional court declares EU law inapplicable in Germany.

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

But ultimately the BvG declared the Lisbon Treaty compatible

CJEU does respond and invented fundamental rights so as to put away

threats coming from the likes of the BvG

Is such conflict between national courts and the CJEU healthy?

Supremacy resistance not confined to Germany!

o

Polish courts had a lot to say in relation to the 2004 constitutional treaty

Conflict is relatively healthy as it is an effective form of negotiation; contrast

between HoL attitude and the BvG one. Demonstrates how the court of justice
modifies its own position in accordance with contemporary domestic views

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

Do these worlds collide or are they parallel universes?

o

Who has kompetenzkompetenz?? Can there be a theoretical solution?

Nobody wants to answer the question so as to avoid conflict

Very little ACTUAL disobedience by national courts, who still refer

questions under Art 267 TFEU for interpretations of EU law by the
Court of Justice
Summary and Conclusions

The Court of Justice has deliberately embarked on creating a distinctive EU legal

order, supreme over conflicting national law

National supreme courts occupy key position in accommodating supremacy doctrine

within own constitutional terms and arrangements

Easiest way to kill off EU law is if national courts stopped using it and
stopped sending questions for clarity to the CJEU

But judicial disobedience is comparatively rare: Court of Justice and national

supreme courts rationalise their own positions to avoid conflict situations

Matter of mutual compromise

ACCESS TO AND ENJOYMENT OF EU LAW: THE COURTS PRINCIPLES FOR

INDIVIDUAL PROTECTION
It is now time to examine the particular devices used by the Court of Justice to allow
individuals access and enjoyment of EU law. The following principles arent conferred
explicitly through the treaties but have been developed by the Court to make the treaties
work and remain effective.
The principles have evolved over a period of time, and are: Direct effect, incidental/
exclusionary effect, general principles and indirect effect

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

If a provision has direct effect, it means individuals (natural persons and

businesses) can enforce it in the national court

How to make the treaties work at ground level:

Allow individuals to access and enjoy EU rights

Private enforcement through national courts to supplement and strengthen Treaty

model of actions by the Commission against defaulting MSS

Embedding EU law in national legal systems

Problems facing the court:

Consistency and legitimacy when creating set of principles not explicitly contained
in the Treaties
o

Court isnt always consistent in what it tries to do or how it goes about

achieving its objectives

The special nature of EU Directives as legal instruments

o

Regarding directives, the court is constrained in terms of what the

definition of a directive is; contextual problem with the treaties in doing
what the court wishes it to do

Establishing direct effect

The notion of direct effect follows the idea that if something is directly effective it means
an individual can rely on it in a national court. Under Article 258 of the TFEU the
commission is able to sue member states before the European Court of Justice for breach
of EU law

The earliest principle established by the Court

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.

Classical definition of direct effect is that it essentially provides for a provision of

EU law to confer rights on individuals which they may enforce before national
courts

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

Requires a provision to demonstrate the following elements in order to be directly

effective
o

Clear and unambiguous

Unconditional

Not dependent on further action by commission or national authorities

Later application of VGL criteria:

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

Horizontal relationship between employer and employee

Fact it included men and woman showed how it applied equally,

principle shows how it is of the utmost importance; assesses whether
obligation to secure equal pay is clear and unconditional

Held that the provision is directly effective from the point of the case and
not retrospectively

Therefore a treaty article will be accorded direct effect for as long as it is

intended to confer rights on individuals and that it is sufficiently clear, precise and
unconditional:
o

By unconditional it means it must set out an obligation that isnt qualified

by any condition or subject to the taking of any measure either by the EU
institutions or by the member states

By sufficiently precise it means it must be relied on by an individual and

applied by a court where it sets out an obligation in unequivocal terms

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

Word may shows how it isnt directly effective

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

So-called loyalty clause

Direct effect applied to secondary legislation: the problem with directives

Under article 288 TFEU, directives are defined a binding regarding the result to be
achieved by the member states and provides a set time period for implementation, but
leaves implementation to the member states

One of the main instruments of harmonisation used by the EU to coordinate the

laws of member states

Implementation doesnt need to follow a uniformed approach but nevertheless the

result/aim of the directive must be secured

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:

Implementation period must have passed (as shown in Ratti)

o

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 relationship is a vertical one (as shown in Marshall)

o

The courts made a distinction between vertical and horizontal relationships

in the sense that involvement with the state or organ of the state (vertical)
is supported as opposed to a horizontal involvement

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

Case concerned the Equal Treatment Directive 76/207 which

prohibits sex discrimination in dismissal cases

The applicant was employed by Area Health Authority and state

pensions at 65 for men, 60 for women. She was sacked when she was
62; relies on Directive to claim unfair dismissal

Court felt the directive could be relied upon. Distinction between

vertical and horizontal; the employers were held to be organs of the
state therefore vertical relationship

AG Slynn in the case felt that to give horizontal effect to

directives in the sense of allowing them to impose obligations upon
an individual would blur the line between directives and regulations

The ECJ felt that a directive cannot impose obligations on an individual and
cannot be relied against an individual

Dividing line between vertical and horizontal:

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

If something can be considered as an organ of the state this will regard it as

being in a vertical relationship with an individual
o

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

Broad test allows for privatised industries to be regarded as organs of the

state due to the service they provide being under the control 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

Is this an indefensible distinction?

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

Inequitable treatment of individuals

AG Lenz in Dori led the critique of such a distinction and the refusal to not allow
horizontal direct effect of directives
o

Widespread use of directives, especially in relation to EU consumer

protection therefore individuals should be protected

Non-discrimination is a fundamental principle of EU law

Directives must be published so as to give constructive notice to individuals

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

Contains right to cooling off period

Not implemented on time by Italy

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

Other remedies now available to individuals in EU law; state liability

principle could be used to pursue damages claim against Italy for
failure to implement the directive

Court have arguably missed the point; enjoying horizontal directive

effect would give you your right however the court are saying that
member states are to compensate an individual for not giving them
their right

The current position:

Court still rejects horizontal direct effect of directivesbecause aimed at member

states
o

Grand Chamber of ECJ keeps reiterating (in Kucukdevici and also in

Dominguez) that there is no horizontal direct effect of directives; you
cannot substitute the directive for the thing you actually want to have

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

Apply VGL criteria to Treaty provisions;VGLand additional tests to directives

The Courts continued refusal to allow horizontal direct effect of directives

remains controversial. Other principles have been invented by the Court to
mitigate the harshness.

2)

Exclusionary/incidental effect of directives

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

Origins are rooted in tackling Member states non-compliance with Directives by

making supremacy work

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

This doctrine essentially allows for unimplemented directives to be used in certain

cases between private parties; directives have a certain degree of horizontal effect
when they do not impose direct legal obligations on individuals
o

An individual can plead a directive in an action against another private

party and it can affect the outcome of the case without directly imposing
obligations on the private defendant

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.

One party can rely on a directive to challenge successfully the applicability of

national legislation
Narrow view of Exclusionary effect

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

The directive in question is about building a single market; essence of which is to

prevent barriers being created by individual member states. An attempt to make
sure the commission had an overview of the technical regulations of each member
state; directive tries to uniform states approach to notifying in advance their
technical approach so as to seek approval from the commission
o

Need for notification in advance of implementation of regulations

Suspend implementation of national regulations until approved

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.

Signalson (competitor) accuses CIA of malpractice/illegality of its systems (ie not

complying with Belgian law)

CIA sues Signalson for libel

o

Can CIA ignore Belgian law as it had not been notified in accordance with
Directive?

Would allowing this be (prohibited) horizontal direct effect?

CIA argued Belgian law was irrelevant

The court of Justice held:

o

It was a crucial directive for single market

Procedural requirements confer no individual rights, so no direct effect

involved

All this direction entailed was an obligation to notify and suspend

Belgium breached procedure; cannot enforce new national rules against CIA

If the Belgians do not comply with what they were obliged to do

then they are not in a position whereby they can enforce their
national laws on private companies such as CIA

CIA can thus ignore national regulations adopted in breach of directive.

Exclusionary effect of Directive.

Belgian authorities failure to notify the EU of their specifications (as

required by the directive) constituted a substantial degradation of the
effectiveness of the directive, which was intended to lower barriers to
trade, and that the Belgian governments breach of the directive made the
Belgian law inapplicable to individuals

Made it clear they are still not allowing horizontal direct effect of the
directive

Courts distinction is that this is not horizontal direct effect of a

directive as there are no individual rights concerned; conflicting
national law can be disregarded; penalising state for not complying
with procedures

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

Although the directive doesnt impose a legal obligation on the

defendants it removed the protection of the national technical
regulations and exposed the defendants to liability under other
provisions of national law

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

Essentially asserting that he cannot be charged with drunk driving as the

equipment they tried to use to penalise him had not been notified and so cannot
be relied upon

Court of Justice distinguishes purpose of Dir (free movement of goods) from use of
kit in criminal law evidence

Court feels the directive is about promoting a single market as opposed to

the use of kit in an evidence criminal law trial

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

Unilever contracts to supply CF (Central Food) with olive oil

o

The parties are both private and in a contract with each other; horizontal
relationship

Labelling in breach of Italian law

CF rejects oil

U sues for price

Question arose as to whether Unilever could ignore Italian labelling rules

o

The ECJ essentially felt that where non-compliance with a directive

amounts to a substantial procedural defect this means a technical
regulation adopted in breach of the directives will be inapplicable

AG Jacobs said:
o

exclusionary effect concept creates commercial uncertainty

How can individuals know if rules satisfy the Directive?

Is it really up to every party to find out whether or not the rules

conformed to the directive?

Why should traders lose out financially because of a Member States breach
of an EU procedural law?

Especially for the legal certainty of transactions entered into on the

basis of national law

Why should individuals in private/horizontal relationships pay the

price for the states short coming?

The Court of Justice said:

o

National court required not to apply Italian rules that have not complied
with Directives procedural requirements

Directive does not create rights or obligations for individuals so no breach

of no horizontal rule

Maintains its previous stance in regard to such cases

Reiterates previous case law in the sense that by allowing exclusionary

effect they are not allowing horizontal direct effect; court is essentially
saying there is nothing in the directive as to how you label olive oil bottles
and so there is nothing in there which gives rights to either parties, and this
directive merely states how member states must notify or suspend and if
they do not then exclusionary effect kicks in

Maintains the distinction between rights seeking to be enforced and

are set out in the directive, or relying on the consequences for
failure to comply with the directive of a state which the court is
willing to entertain. This is arguably a fine line being drawn by the
court

National courts in such circumstances are required to refuse to apply

a national technical regulation which was adopted during a period of
postponement of adoption prescribed in the directive

The court stressed that the directive doesnt create individual rights and
imposed no obligations on individuals

A directive can be invoked in cases involving individuals to disapply

national law; as long as the directive doesnt create new law/rights/
obligations. Essentially all the directive does it leave a void (by
not applying rules which do not comply with the directives
procedural requirements) which is filled by other provisions of
national law
Extrapolating exclusionary effect

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

Protection of supremacy as opposed to upholding individual rights

What would a wider, generalised version of exclusionary effect resemble?

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

That solution holds that, although directives cannot be substituted for a

lack of national law or defective national law in order to impose obligations
directly on private individuals, they can at least be relied on to exclude
national law contrary to the directive, and only national law cleansed of
the provisions contrary to the directive is applied by the national court in
resolving a dispute between private parties.

Exclusionary effect looks to see whether or not something is indeed

a principle

You knock out the conflicting element of national law but are
nevertheless still left with a certain element of national law

Directive is used to cleanse the 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

That a directive intended to counteract discrimination may be relied on in

proceedings between private parties in order to set aside the application of
national rules which are contrary to that directive

A very broad view of incidental/exclusionary idea

Claims this would not infringe the no horizontal rule

You can rely on the presence of a directive and the application

would be for the German court to disregard the conflicting element

of national law, therefore the applicant would adhere to national

law but simply a cleansed version of the national law

The court nevertheless rejects this notion

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

Individual can rely on the general principle of EU law age discrimination, as

given expression in the Age Directive

Not relying on the Directive as such

Interesting that the court fails to mention any of the exclusionary

effect case law

If principles can have exclusionary effects then why is it not said

that directives can too have such effects?

Conclusions: is exclusionary effect a principle or aberration?

Is it really a principle?

Narrow view: Exceptional cases confined to procedural Directives

o

Wider view: post Kckdeveci , isexclusionary effect the straight consequence of

applying supremacy rather than direct effect?
o

Merely a cleansing of national law and not a disruption of denial of

horizontal effect

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

Exclusionary effect likely to become a more prominent question post-Lisbon

because of elevated legal status of Charter of Fundamental Rights
o

3)

Not good from a point of view of legal certainty

As hinted at by AG Bot in Kucukdevici

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?

The Mangold origins

This case revealed the idea of general principles being utilised. Mangold v Helm and a
number of earlier similar cases were in regard to the same idea of age discrimination.
Concerned Directive 2000/78 (equal treatment directive)

Adopted under Art 13 EC now Art 19 TFEU

Implement by 2.12.03 extendable to 2.12.06

Requires fixed term contracts to be justified and proportional

Directives intention is to ensure that employers do not circumvent their

normal obligations under fixed term contracts

Recognition that fixed term contracts may be of some benefit to some

individuals

Key policy consideration is that there needs to be a justification for fixed

term contract

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

2001 Act: fixed term contracts ok without justification if e/ee 58

2002 Act reduces age to 52 until 31.12.06

M (56) employed by H from 1.7.03 contract to end 28.2.04

Drew up contract whereby an overage individual was employed by

Helm on a fixed term contract and then Mangold sued his employer
on the basis that such a contract was incompatible with the
directive

Mangold argues he can rely on the directive which the German law
has clearly ignored

Question was if Mangold could rely on anything in EU law?

Fact was that he was in a Horizontal relationship: no d/effect of directive

o

Implementation period (for Germany) has not expired either (extension)

Court of Justices novel approach

o

Principle of non-discrimination re age was a well-established general

principle of EU law!

Court feels that the directive is simply an expression of a pre

existing EU principle of anti age discrimination within the realms of
the whole anti discrimination policies

Courts idea that EU has always been anti discrimination is merely

their own view and expression

Directive just the expression of that principle

M can rely on the general principle

Held that he has rights despite being in the implementation period

which flow from the general principle the court has decided to
unveil which applies despite the fact that a particular directive has
an implementation period which has not yet run out

A radically different line of reasoning from the direct effect

of directives

Not even relying on Art 13 EC (now Art 19 TFEU)

BUT outcome horizontal direct effect of directive

Mangold is not relying on a directive but is rather relying on a

general principle and so the court will not be in breach of their own
policies regarding horizontal effect in situations of directives
Post- Mangold criticism

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

Also, issues arise as to where the boundaries are?

o

What counts as a general principle?

Are all general principles d/e then?

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

Need for coherence in the interpretation of Treaties; if the Court of Justice

interprets the Treaty as placing limits on the applicability of legal doctrine,
it must ensure that exceptions to those limits are coherent with the reasons
that informed the initial limitations
Post- Mangold development

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 employed by Swedex from age of 18 (horizontal)

Mrs K dismissed at age of 28, given notice as if employed for 3 years rather
than 10

Mrs K claims inadequate notice because of German rule incompatible with

EU age discrimination directive

Referred by German Court to Court of Justice as to whether German rule infringes

primary EU law or Age Directive

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

I would ask the Court to take a more ambitious approach. Suggests:

Accept reliance on directives which facilitate the implementation of

the general principle of equal treatment to disapply conflicting
national rules

This obligation should apply DURING the time period for

implementation of a directive (as Court did in relation to Mangold
and the invocation of the general principle of non-discrimination on
age)

Reinforces argument by reference to Art 21(1) of EU Charter of

Fundamental Rights

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)

Felt that anti age discrimination is a general principle which is

underpinned today by the Charter. This case is the first case heard

by the court after the charter acquired its new legal status as
equivalent to the treaties post-Lisbon

Significant statement by the court in relation to the charter

Repeats bar on horizontal d/effect of directives

Court affirms its Mangold provision that general principles have

direct effect

Perhaps applies general provisions in the same light as treaties

EU law, particularly the principle of non-disc regarding age as given

expression by the Directive, must preclude the German legislation.

Nat court to disapply offending provision

Affirming the notion that anti age discrimination is a general

principle

Is this exclusionary effect of Directive or direct effect of a general

principle or both?
How far can Mangold go?

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

breast-feeding leave available to fathers but only if mother employedand

did not claim herself. In this case the mother was self-employed so father
was denies claim as there was at the time no independent right of fathers
under Spanish law

Spanish court refers question whether national rule offends general

principle of equal treatment and Directive 76/207

National court is arguably fishing around as to what type of effect or

principle they should utilise

AG Kokott said:

It remains to be seen (after Mangold and Kucukdevici) whether the

Court will extend such horizontal direct effect to other general legal
principles... Above all, prior to any further development of that
kind, it would be necessary to discuss the dogmatic foundations of
that contested horizontal direct effect and its limits.

Felt it would be a step too far to consider Mangold

approach here when national court hasnt even asked the
question!

Spanish rule offends against the principle of equal treatment

within the Directive

The Court said:

Clear that leave rules have been detached from biological fact of
breastfeeding; rules thus about child care and hence discriminatory

Frames question as: does ET Directive preclude national rule.

Answer: Yes!

NOTHING regarding general non-discrimination principles and no

mention of Mangold

Is this perhaps an exclusionary effect case?

Ignores the general principles nettle and questioned if the

directive as opposed to the principle preclude the national
rule

What does Spanish court have to do as a result?

NB wording of national rule: This time off work may be

taken by the mother or the father without distinction,
provided that they are both employed

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;

Directive 2000/78 to combat discrimination by 2.12.03

Rs claim starts during implementation period for Directive (ie from Oct
2001)

AG Jaaskinen:

Felt this to be another case regarding general principle. If age is a

general principle of EU law then so is sex orientation

If R not governed by Directive, then gen principle should apply (and

from Oct 2001, not 3.12.03)

Grand Chamber:

Directive precludes direct distinction: for national court to compare

marriage/reg partners in German law

Directive expression of general principle; but principle requires a

connection to EU law

Showed caution in even accepting discriminatory nature of

this relationship

Need for connection between sexual orientation and EU law;

Article 13 never made this connection

Delay in the principle coming into being in EU law and it requires

trigger of directive to make connection

Any right Romer has are from the expiry of the

implementation period (3.12.03)

Does the decision from Romer limit Mangold?

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

Why does Court limit R to the post-implementation period date? Consider:

o

Vertical so directive IS directly effective after that date and Rs rights

come from directive?

Is it retracting the general principles line of case law, at least during

implementation periods?

Are some equalities more equal than others? Age trumps sexual orientation?

Are all the cases better explained as exclusionary?

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 leave or payment in lieu

Argues preconditions in breach of Directive

Claims work-related

French law however said

o

The leave is conditional on 10 days work for that employer

Treats time off for work-related accidents as periods of actual work

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

A private relationship and so the bar on horizontal effect of directives

should also apply to the charter; very restrictive opinion and approach
limiting individual access

Evidence (EU, national, international law) that annual leave could be a

general principle

Direct effect of principles cannot be ruled out

BUT this principle (leave) cannot be regarded as substantively

unconditional so no d/e of principle

Nor does Dir give sufficiently precise expression to the principle

Therefore no disapplication of national law is required

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

But disapplication of national law arises only if no compatible

interpretation of [national] law proves possible (emphasis added)

Directive makes no distinction between work-related/other

accidents

If national court interpreted work-related as including on way to

work then there would be an EU-compatible interpretation and D is
protected.

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

Should interpret your national law in a manner which given

EU law compatibility and if not then the directive will be
nationally effective if the body is a state one

Invites the national court to come up with an interpretation

which means she gets her rights or to treat this scenario as
one involving a vertical relationship whereby her rights can
be enforced

Otherwise, directive will be directly effective if C is state body (left to

national court to determine) and national court must disregard national law

In this case courts do not use the general principle

Could this be seen as an implicit rejection of exclusionary effects of

directives?

Comparing exclusionary/general principles approaches

Exclusionary effect:

Scope? (ie which types of EU law: Treaty, Dirs?)

Result: (maybe?) disapply national law; no substitution (Dir cannot replace nat law)

Enforces supremacy, parties to use cleansed national law (AG Bot)

When does it apply? (only after implementation period for directives?)

General principles:

Which ones (age, sex, sexual orientation etc, not annual leave)?

Result: either d/e of principles (per AGs Kokott + Trstenjak) or disapplication of

national rule (Kckdeveci)

Can apply during Directives implementation period (Mangold; butcfRmer)

Is the bar on horizontal direct effect of directives dead and/or irrelevant?

Court explicitly says no (Kckdeveci)

Directive cannot replace the national law under exclusionary effect

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:

Individual access to, and enjoyment of, EU law

Building a constitutionally based complete legal system out of EU sources and

principles

Compliance of MSS with EU norms

However the court simultaneously faces problems:

Facilitating wriggle-room for Member States and appearance of sovereignty and

national legal systems

Textual issues (esp legal definition of Directives)

Legal and commercial (un)certainty

Own judicial authority undermined by inconsistency

Has a problem with limited capabilities of directives

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

Only raises issues of interpretation

Would giving horizontal direct effect to directives make more sense than the
exclusionary effect or Mangold approaches?

What will the Court do with the Charter?

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.

Indirect effect is a general proposition of EU law and is not limited to directives

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:

EU obligation upon national courts to interpret national law consistently with

relevant EU norms

Indirect effect invokes a national manner but gives it an interpretation in

line with EU law

Requires national law to be interpreted in the light of directives

instead of relying on EU measure, indirect effect relies on (properly interpreted)

national law
o

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

The legal basis:

Established by CJEU in Von Colson, developed in Marleasing and refined in Pfeiffer,

AdenelerandDominguez
o

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?

A limited as opposed to an absolute duty

o

No obligation to interpret contra legem

o

Only demands that national courts interpret national law only so far as is
possible with EU law

If provision is clearly incapable of consistent interpretation then no need of

interpreting national law in a certain manner

Not applicable to determining or aggravating criminal liability

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 expectations and requirements of national courts in regard to

interpretation.

EU Work Time Directive: max 48 hrs a week

Germans went beyond 48 hours through using collective agreements which

resulted in Red Cross employees working 49 hours a week; question
becomes whether or not the employees can rely on a directive or national
law interpreted in light of the directive

The Grand chamber held:

o

No horizontal direct effect of directives BUT

National courts must consider national law as a whole so as not to produce

a result contrary to that sought by the directive

Need to find a provision which will give an acceptable outcome

which complies with EU law

European courts instruction invited a more intensive form of

interpretation than the previous case; by considering national law as
a whole it is meant that all other law around national system should
be interpreted in accordance to EU provisions (applies to law/tort/
etc)

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

Nuclear installation built in Czech Rep in accordance with EU rules, near

Austrian border, allegedly causing nuisance to residents in Austria

Austrian legislation: interference from officially authorised installation

gives rise to damages only, not an injunction.

Austrian court 1 : interprets officially authorised as implying it could be

upheld by Austrian authorities only

Austrian court 2 refers questions to Court of Justice whether Austrian court

1s interpretation infringes EU law

Effect of Court 1 approach is that Czech authorisation could give rise

to injunctions as well, not just damages

Thus different outcome for Austrian and Czech authorisations in

terms of available remedies

Grand Chamber approach:

non-discrimination on grounds of nationality = a general principle of

Treaties

The fact that officially authorised had the effect that only Austrians
could be authorised was regarded as being discriminatory

Grand Chamber ruling:

Para 140: it is for the national court to give, so far as possible, to

the domestic legislation which it must apply an interpretation which
complies with the requirements of [Union] law. If such an
applicationis not possible, the national court is bound to apply [EU]
law in full and protect the rights it confers on individuals, and to
disapply, if necessary, any provision [which] would lead to a result
which is contrary to [EU] law.

Such a result would be achieved only through interpretation;

landowners can rely on the same Austrian rule but in a way
whereby upon interpretation it would not be discriminatory
against them

So essentially, from the case of Marleasing the obligation of harmonious interpretation

applies even where the national law predates the directive and has no specific connection
with it. Secondly, from the case of Pfeiffer, the interpretive obligation applies not only to
national law that implements the directive, but the national legal system as a whole.
Thirdly, the interpretive obligation is strong but doesn't require an interpretation of
national law that it cannot bear.
Limits to the duty of interpretation
There isnt any duty to interpret Contra Legem national law:

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

Indirect effect NOT possible

In regard to indirect effect, the grand chamber accepts that in cases

where interpretation is not possible you have to use one of the other
available content to reach a good decision.

Ignore conflicting part still leaves viable national law to protect Ms K or

Direct effect of general principle

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

Directive silent on relevant work for annual leave

French law only covers work related accidents

CJEU invites national court to interpret compatibly

Cf AG and French court who thought contra legem!!

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 idea of when this duty of interpretation applies is relevant to directives as

directives have an implementation period; if the relevant EU norm is a directive
when does the national court obligation to interpret kick in?

When determining or aggravating criminal liability:

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.

Can it apply earlier? For example during the implementation period?

o

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

No view that obligation only crystallises at end of 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

National courts are bound to interpret domestic law so far as

possible in the light of the directive with a view to achieving the
results sought by the directive.

2) From start of period

National courts must refrain as far as possible from interpreting

domestic law in a manner which might seriously compromise, after
the period for transposition has expired, the attainment of the
objective pursued by that directive.

The serious compromise doctrine has its origins in the Inter-EnvironnementWallonie

case which was in regard to the states obligation in such circumstances. Court expressed
their decision and directed it towards states as opposed to domestic courts; court in
Adeneler pasted this idea in regard to courts as well.

Adoption of acts by MSS during implementation period of a directive

ie a principle in relation to States

AG Jacobs explains what serious compromise might entail

o

AG Jacobs gave analogy of example whereby you inevitably breach aims of

directives and this would be an illustration of seriously undermining the
directives

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

A major established principle, not confined to directives

o

Part of a triangle between European courts, national courts and individuals

and is a means by which EU law is made more effective; generally
applicable as well

ieany national law to be interpreted in the light of any relevant EU law

The duty has been intensified by PfeifferandAdeneler

There are limits, egcontra legemcases, but difficulties where boundary lies
o

Whilst being boundaries to its enforcement it can nevertheless still be

invoked

If indirect does not work, try the exclusionary/Mangold approaches to preclude a

particular national law

Summary of everything so far

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

However the case at hand is indeed in regard to directives

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

MSS shall take the measures necessary to ensure that guarantee

institutions guarantee payment of employees outstanding claims

No implementing legislation in Italy

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

If the direct/indirect effect principles could not be used, the claimants

(through recommendation of the court) sought to sue for damages

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

Court essentially invented a specific EU remedy in damages against defaulting

member states so as to extend individual protection

Reasoning of the Court in the case:

The full effectiveness of Community law would be affected and undermined if

individuals were not able to recover damages

It follows that the principle of the liability of the State is inherent in the Treaty
o

Held to be so obvious a necessity that it need not be found in any text

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

Outcome from Francovich:

Directive 80/987 held as intended to confer rights on individuals (employees)

The non-implementation by Italy amounted to a breach

State would be liable in principle to employees who suffer loss as a result

o

This is for the national court to apply

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

follows from the requirements inherent in the protection of the rights of

individuals relying on community law that they must have the possibility of
obtaining redress in the national courts for the damage caused by the
infringement of those rights owing to a decision of a court adjudicating at
last instance.

An opportunity for clarification came in the joined cases of Brasserie du Pecheur

and Factortame III and concerned a series of questions referred from the German
Constitutional Court and the English High Court respectively
o

Brasserie concerned German legislation on beer purity, and this affected

the free movement of goods. Such legislation was challenged by a French
producer who was affected by the law in that they were unable to sell their
goods

Factortame concerned UK legislation regarding nationality rules and it was

felt this affected the free movement of persons (establishment for example
where they are self-employed) and this was challenged by Spanish
fishermen.

Joined cases go further than Francovich:

o

Concerned Treaty rules and not directives

Directly effective rules

National legislatures as offending actors of the state

Positive acts as opposed to failures to act

The Court of Justice said:

o

The full effectiveness of community law would be impaired if individuals

were unable to obtain redress when their rights were infringed by a breach
of community law

Not limited to directives

Applicable to legislative acts of the member states

Reasoning attempts to legitimise the development of the principle of state

liability as it situated the principle of state liability in the context of the
treaty provisions on liability of EU institutions under Article 340 TFEU

The right to reparation is the necessary corollary of the direct effect of the
community provision whose breach caused the damage sustained

In this case the court bring up this argument as a further

justification for imposing further state liabilities; court defended
fact it was extending state liability so as to uphold treaty rules

These cases set up the current tests, and so the three tests are to be
known as deriving from Brasserie/Factortame

3 conditions for liability are:

1) EU rule intended to confer rights on individuals
2) Serious breach by MS
3) Causal link between States breach and loss to individual
Key elements of liability

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

Not limited to directly effective situations; do NOT confuse with VGL

criteria

Variations in case law expressions of the condition: EU measure granting

rights/for benefit of individuals

Problematic in environmental cases for example

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:

Concerned an EC Banking directive which sought to bring about a deposit guarantee

scheme of a minimum of 20k Euros and gave a deadline of 1995. There was a late
implementation by Germany in 1998.

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

Arguably decided on a public policy basis

CONDITION 2) Serious breach

Court refers to manifest and grave disregard by State

French = violation suffisammentcaracterise

AG Jacobs in the Sweden v Stockholm Lindopark case says serious refers to clarity of
the infringement:

NOT a statement about importance but merely clarity

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

Clarity and precision of rule breached

Measure of discretion left to MSS or EU authorities

Intentional or involuntary

Was error excusable or inexcusable

Did EU institution contribute to adoption or retention of national infringing

measures

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

Failure to implement directive as in Francovich is a clear example of a serious

breach

Nevertheless, clarity is the most important feature:

The case of R v HM Treasury ex parte BT was an opportunity taken by the Court of

Justice to let the states know that they will not always be liable
o

This was the first case after Brasserie/Factortame

Directive concerned listed criteria for selection of service providers,

however the UK implementing regulations actually named service providers

BT sues the UK claiming disadvantage

Court found the state to be in breach, however not a serious one

o

Directive imprecisely worded; no case law

No reaction by Commission to UK regulations, so not made clear to UK that

violation would occur

Court admits it was a breach by the UK as to the meaning of the directive,

but due to the arguably extenuating circumstances it was not a serious/
clear breach

There are inevitably problems regarding clarity:

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

measures are taken to protect the interests of employees in respect of rights

including old-age benefits under company pension schemes

The company went bust and pension scheme was only paid out between 20-49%
benefits, and the employees proceed to sue the UK

Court of Justice said:

o

Purpose of directive is to provide minimum protection

Emphasises that parties, MSS and the Commission could not suggest
with precision what a minimum level would be

Art 8 Dir does NOT require payment of pensions in full

This was contrary to the view of the AG who felt

Protection was full protection and therefore wanted to award

damages to the employees. However the court held the
statement was in regard to minimum protection as opposed
to effective protection.

BUT 20-49% payout cannot be protection

Thus UK in breach; but national court to decide if serious for

purpose of damages claims

Therefore, so far we can summarise serious as being:

A manifest and grave disregard by MS of limits on its discretion. This amounts to

a serious breach
o

But if MS not called upon to make legislative choices, simple infringement

of EU law may constitute serious;

Case C-452/06 Synthon made clear thatdiscretion, which is broadly

dependent on the degree of clarity and precision of rule infringed,
constitutes an important criterion of seriousness

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

Clarity and precision of the rule breached

Measure of discretion left by that rule to the national or EU

authorities

Whether infringement and damage caused was intention or

involuntary

Whether any errors of law was excusable or inexcusable

Fact that position taken by an EU institution may have contributed

towards the omission

The adoption or retention of national measures or practices contrary

to EU law

However, some breaches are serious Per se

o

Non-implementation of Directives (rationalisation of Francovichitself): see

Dillenkofer

Failure to observe consistent Court case law: Larsy II

CONDITION 3)Causal link between States breach and loss to individual

It must firstly be clarified what exactly is meant by State. Brasserie/Factortame made
it clear that a member state legislature will undoubtedly be regarded as a state, however
the definition of a state isnt limited to just this.

Other manifestations of state include administrative acts:

o

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 cases of Haim and Larsy IIdemonstrate how administrative decisions

taken up by public bodies would still mean they would be regarded as the
state

In Haim the refusal to admit to the dentists register was regarded as

a state act

Similarly in Larsy a pensions institution was held to be a state

Local authorities can also be regarded as a State, and Schmidberger demonstrated

this fact albeit not establishing any breach

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

Austrian rule awarding payments to professors who worked 15 years in Austrian

universities but this didnt take account of service elsewhere.

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

Court treats judicial breach as a more exceptional possibility and uses a

more stringent threshold

State liability is possible where a supreme court commits a manifest breach

of the case law

This is an exceptional liability but nevertheless exists, in this regard where a

supreme court disregards a provision of the ECJ

The Court of Justice set out certain principles:

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

However there was certain disagreement expressed in this case

o

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

So state liability is possible in principle at least for such situations

National court could not have thought this a proportional rule!

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

No previous Court case law on whether a bonus payment amounted

to a breach of market rules

Liability in principle for acts of final courts but no breach here

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

When determining who to sue when suing the state:

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

Can the state be liable for acts of individuals?

o

AGM v Finland and Lehtinen showed how a nation and individual were sued
for a loss of profit due to the interstate row

Concerned a Directive on safety of machinery. AGM was an Italian

maker of lifts wishing to sell in Finland. There was a Finnish
independent review body of which Lehtinen was an expert; prior to
the bodys report Lehtinen makes a public statement calling AGMs
lifts dangerous and this was contrary to the Government view

Grand Chamber had to ask if an officials act could be attributed to

the state. And they held it depends on how the statements may have
been perceived, especially:

official context headed notepaper etc

TV interviews on dept premises

No indication that views are purely personal

No immediate counter-statement by Dept

The decisive factor was what can addressees reasonably suppose to

be the positions taken with authority of individuals office?

Conclusions found in this case were:

Art 4(1) of Directive confers individual rights

Was read as including health and safety which affects

individuals and so does uphold their rights as opposed to
mere technical freedom.

MSS shall not prohibit or impede the [marketing] of

machinery and components which comply with this Directive
is this really a conference of individual rights? Compare with
Peter Paul case

No discretion for Member states in regard to the Directive

Mere breach therefore amount to a serious breach (if

national court treats officials act as attributable to State)

EU law does not preclude individual from being held liable additional
to MS, but does not require this

Whether you can sue an individual is a matter of domestic

law and not EU law, but you can sue the state as the
individuals remarks would be seen by reasonable persons as
being an act of the state

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:

Is this a national law test, EU test or hybrid?

Presumption is that national rules of causation apply

Leading case is that of Rechberger

Facts concerned a package holidays Directive which laid out consumer

protection measures and guarantees repayments and repatriation in event
of organising company going bust. This was implemented late by Austria

An Austrian newspaper offers holidays at ridiculously low (illegal) prices,

the newspaper is inundated and subsequently goes bust. The consumers
then sue the Austrian state and the question is if there is state liability or
an intervening act in terms of causation.

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

An EU remedy (to be enforced via national courts)

Free-standing, not residual, action

Systemic contribution: EU legal order of rights and remedies

Part of constitutionalising process

There are however policy criticisms:

Who really pays for the damages?

If we as taxpayers are the ones who finance the costs incurred by the state
if found liable, then it is essentially punishing us

Is it an adequate alternative/substitute for direct effect from individuals

perspective?
o

Rights or compensation for loss of rights?

Fact court sees compensation for loss of rights isnt so persuasive in its
argument for substituting enforceable rights

Does the attachment to judicial acts compromise doctrine of res judicata?

o

Eternal litigation?

Case in

1992-2011 Overall Successful

number

Success rate

England

25

36%

Germany

(15 re directives)

22%

37
(25 re directives)

Is State liability really of much use and effectiveness?

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

Summary of state liability

Began in relation to directives but now applicable to any State breach of EU law that
satisfies the 3 Brasserie/Factortame conditions

Condition 1: rarely litigated

Condition 2: serious is actually in regard clarity/extent of discretion

Condition 3: national causation rules unlessineffective to protect EU rights

It is a free-standing EU remedy, but essentially is it actually the panacea/solution for the

lack of horizontal direct effect of directives that the court claims it to be? Do claimants
actually use it?

EFFECTIVE PROTECTION AND NATIONAL PROCEDURAL AUTONOMY

Having an EU right is one thing and being able to enjoy it through enforcing it in national
courts with a proper remedy may prove to be a whole other thing. What the Court of
Justice has done is essentially not only set up EU rights as separate but obliges national
courts to make effective use of such rights even if this means the disapplication of
national procedures
The courts original stance was that enforcement of (then) community law was left to
national courts applying national procedures and remedies; recognition of procedural
autonomy, as shown through the cases of Rewe and Comet

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.

Essentially, it is now required for national courts to strike an appropriate,

proportionality-based, case-by-case balance between the requirement of effective
judicial protection for EU law rights and the application of legitimate national
procedural and remedial rights
o

Potentially very intrusive

Effectiveness and equivalence are entirely judicial in their nature and have no
treaty basis
Principles of effectiveness and equivalence

The obligation of national courts to secure effective protection for individuals EU

rights, as liquated in Factortame III, has made substantial inroads into a clear cut division
between EU rights and national remedies; even the concept referred to as national
procedural autonomy is no longer immune to the impact of EU law. This essentially
means people pursuing enjoyment of their EU rights could ignore and have national courts
disapply any obstacles in such a pursuit.

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

Essentially is a partial recognition of the courts jurisprudence as it only

talks about remedies as opposed to procedural protection. Statement of
recognition

Consists of a right to an effective remedy

These articles provide a statutory underpinning to an area previously left solely

under the courts jurisdiction

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

Equivalence would usually be very easy to show a breach of

2) Make it virtually impossible or excessively difficult to obtain reparation

(effectiveness)
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:

Amounts of reparation/Ceilings on available compensation (Marshall II)

o

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

Restrictions on remedies (Factortame, Fuss)

o

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

Firmly emphasises the requirement of EU law being effective; rule

which prohibited the grant of interim relief would be unacceptable

State liability would have been deemed ineffective if it had to abide

by normal national provisions

This does not mean that the ECJ has re written UK case law

The Fuss case concerned a German collective agreement which infringed

the Work Time Directive stating how a maximum of 48 hours could be
worked in a week. A fireman, Fuss, sues the local authority. German law
held that he must apply to employer first as it was fault-based liability. The
Court of Justice held that the fault requirement was a breach of
effectiveness in EU state liability claim:

To apply to the employer would be a breach because employee was a

weaker party, but it wasnt for EU law to specify a remedy

So court rules that the German law should be disapplied but only
thing the EU doesn't specify is a specific remedy

Type of remedy (Courage, Manfredi)

o

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.

Upon referral to the Court of Justice it was held that competition

rules must be effective and the doctrine of effectiveness demands
reparation therefore damages cannot be precluded. National courts
may reduce damages depending on attribution of responsibility for
infringement.

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.

Court rules that injured parties must be able to seek compensation

even for loss of profit and this was in the interests of competition
law

This case comes remarkably close to a statement by the court that

there is a corresponding horizontal damages right but this is not set
out in the same way.

Effectiveness in some cases will demand damages

Limitation periods (GrundigItaliana)

o

Limitation periods are in place to ensure legal certainty and may vary
between states and across different types of claim

Reasonable national implementation periods are generally

compatible with EU requirements, but they could be found to be
incompatible where the protection afforded by EU rights is
negatively affected.

The case of GrundigItaliana concerned Italian law on claims to recover sums

paid but not due which changed from 5 years to 3 years and entailed a
transitional period of 90 days in which actions could be brought under old
rules. The Court of Justice felt that whilst the reduction on years was

reasonable, the 90 day transition period was a breach of principle of

effectiveness and a minimum of 6 months was needed to satisfy
effectiveness.

Limitation must remain reasonable and include satisfactory

transitional arrangements

Legal aid conditions (DEB)

o

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

Court of Justice in DEB held that principle of effective judicial protection

was a fundamental principle of EU law and that Article 47 of the Charter
didnt rule out legal persons obtaining legal aid.

Concluded that it was for national courts to decide whether national

restrictions undermine the core of the right of access to the courts
and they must apply proportionality

Left to national law to play effectiveness and shows the ECJ sitting
on the fence somewhat

But where is the line drawn for effectiveness?

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

Effectiveness: a dodgy test?

Effectiveness could be seen as limited in the sense of merely being a standard by

which national rules are reviewed
o

An unopposable idea?

Can you predict when there will be a breach?

Can it be trumped by other principles? eg

Legal certainty

Non criminalisation

Extends reach of EU law into national law

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

Flexibility of effectiveness as a test: problems for legal certainty?

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

In relation to the choice of court and forms of action:

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

Effectiveness: where the delay is attributable to employers deliberate

misrepresentation (as it was in this case), national time rule must be
extended

ECJ accepted the effectiveness point but went on to consider the

requirement of equivalence and gave firm guidance to the national
court on how to apply this.

Equivalence: this is for the national courts to consider

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.

it is appropriate to consider whether, in order to fully assert rights

conferred by EU law before the County Court, an employee in
circumstances such as those of the applicant will incur additional
costs and delay by comparison with a claimant who, because he is
relying on what may be regarded as a similar right under domestic
law, may bring an action before the Industrial Tribunal, which is
simple and in principle less costly.

Essentially, the Court of Justice developed the same context-specific

balancing approach for national courts to assess the equivalence of
domestic rules as it did for effectiveness in other cases.

In relation to substantive remedies (state liability):

The case of TransportesUrbanos concerned a Spanish law which infringed an EU VAT

Directive, and the applicant overpaid tax and sues Spain under state liability. There
was a Spanish rule that said how a state liability claim based on EU law must
exhaust domestic administrative and judicial remedies first, and another which
stated (in regard to damages for unconstitutionality of legislation) how it was not
subject to exhaustion rule
o

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?

Impact of effectiveness and equivalence on national substantive rules and

procedures

EU-level legislation (eg the criminalisation cases below on the environment and
transport)
o

The case of Commission v Council (environmental remedies) made it clear

that there must be a criminalisation of certain acts so as to ensure
environmental protection. The EU has an environmental policy and so must

adopt criminal sanctions to enforce sanctions so as to enforce EU law

policies more effectively.

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.

Spillovers (applying EU case law/principles to non-EU situations)

o

No specific EC criminal competence but can force MSS to use theirs

to enforce EC policy

Does indeed have knock-on effects as the M v Home Office case

demonstrated. The facts revolved around the deportation of a non-EU
citizen by the UK and the question was whether the bar on interim relief
against the Crown applied to him as previously it had been disapplied in the
EU context as Factortame showed.

The House of Lords proceeded to reverse the discrimination and

scrap the bar on interim relief altogether therefore showing a
change of national law for domestic situations

Lord Woolf said how it would be an unhappy situation if a citizen

could protect his EU interests but not other interests which may be
Just as important., thus disapplying bar on interim relief here too.

Mirror-imaging (national laws enacting EU-like rules for purely domestic

situations)
o

Why would the member states deliberately copy EU regimes for purely
domestic situations?

For example, Articles 101-102 TFEU govern competition law, and

section 60 Competition Act 1998 applied similar rules and key
concepts to domestic competition law; confirms this idea of having
to copy and conform to the standards of EU law

Purpose of section 60 was to ensure that questions are dealt with

in a manner consistent with the treatment of corresponding
questions arising in Union law. Enforcement agencies to act in a
manner to secure no inconsistency with Court and Commission
decisions.

As for the Court jurisdiction and mirror-imaging, the case of Leur-Bloem

concerned Dutch rules on tax avoidance and the question was whether they
were intended to replicate EU tax directive for internal 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.

Arguably this acceptance shows a move towards broader reach of EU

law

Is this towards a European IusCommune (common law)?

Is spontaneous harmonisation or convergence taking place as a result of these

developments?

Highly controversial: some key objections

o

No political mandate: harmonisation by stealth

Excessive European Court activity/creativity

Inroads into cultural diversity

Impossible without distortion

Summary: Penetration by EU law

Creating EU rights:

Direct effect, state liability remedy

Fundamental rights: Mangold, Kadi, Kckdeveci+ upgraded Charter of FRs

Limiting national law:

National courts duties: disapply conflicting national law, consistent interpretation,

serious compromise tests

Effectiveness/equivalence review of national rules; criminalisation cases

Voluntary national acts:

Spillovers to avoid reverse discrimination

Mirror-imaging legislation in areas of domestic law

Summary

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

JUDICIAL DIALOGUE: ARTICLE 267 REFERENCES

The preliminary reference procedure contained in Article 267 TFEU has arguably permitted
the Court of Justice to shape the development of the EU legal order and its relationship
with national legal orders, more than any other.
According to Article 267 TFEU, the Court of Justice shall have jurisdiction to give
preliminary rulings concerning:

a) The interpretation of the Treaties

b) The validity of acts of the institutions of the institutions, bodies, offices or
agencies of the Union;
Where such a question is raised before any court of tribunal or a member state, that court
or tribunal may, if it considers that a decision on the question is necessary to enable it to
give a judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a
member state, against whose decision there is no judicial remedy under national law, that
court or tribunal shall bring the matter before the Court.
So essentially:

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 it considers a decision on a question of EU law is necessary to enable it to

give judgment, any court may refer that question to the Court of Justice. Known as
THE DISCRETION TO REFER

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

It is for national courts to make the decision to refer

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

Indirect individual access to the Court of Justice

This is also an indirect way of testing the validity of EU action for conformity with
Union law
Structure of Article 267 TFEU

National court can ask for preliminary rulings concerning:

Interpretation of the treaty

Validity of acts of the institutions

Allows for discretionary references from lower courts:

Only if the national court of tribunal considers it necessary

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

Why does this judicial dialogue exist?

Secure uniformity of interpretation across EU

Allows (indirect) access by individuals to Court of Justice; one cannot directly

petition the Court of Justice however

Horizontal (not hierarchical) dialogue between Court of Justice and national courts

Key route for developing new principles through engaging with national courts
o

As seen in the cases of VGL, Francovich, Pfeiffer, Mangold, Kucukdevici, etc

What are the conditions for making a reference?

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

Body must enjoy official recognition or exercise a public function; must

have the power to determine the legal position of individuals with binding
effect, essentially it must exercise a judicial function. The fact there may
be national limits on jurisdiction doesn't disqualify a body from constitution
a court or tribunal for the purposes of Article 267 TFEU.

In Dorsch Consult v Berlin it was conveyed that in making a determination the

court will take into account the following criteria:
o

Whether the body is established by law

Whether is it permanent

Whether its jurisdiction is compulsory

Whether its procedure is Inter Partes

Whether it applies rules of law

Whether it is independent

The Broekmeulen case:

If under the legal system of a member state, the task of implementing EU

law is assigned to a professional body acting under a degree of
governmental supervision, and if that body, in conjunction with the public
authorities concerned, creates appeal procedures which may affect the
exercise of rights granted by EU law, it is imperative, in order to ensure
proper functioning of EU law that the court should have an opportunity of
ruling on issues of interpretation and validity arising out of such
proceedings.
Power or obligation to make a reference

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:

The Court of Justice insists there is an unlimited discretion to refer, and so if a

lower court wants to send something off for clarity, then no other court can stop
them

No fetter is to be applied within national law

However, Court of Justice refuses to allow a reference to be made where a court

made what was in essence an administrative decision that didnt resolve a legal
dispute since the national court couldnt be regarded as exercising a judicial
function in this instance

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

Da Costademonstrated that when the question of EU law that is raised is materially

identical to a question which has already been the subject of a preliminary ruling
in a similar case, no obligation. CILFIT once again reiterated how no obligation
arises where the point of law which has already been addressed by the Court of
Justice, irrespective of the nature of the proceedings.

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

Account should be taken of the peculiar features of EU law, the particular

difficulties to which its interpretation gives rise

For example, comparison of different language versions of EU

legislation, and

Terminology peculiar to, or different in meaning under EU law and

the risk of divergence in judicial decisions within the Union

Every provision of EU law must be placed in its context and interpreted in

the light of provisions of EU law as a whole, regard being had to the
objectives and its state of evolution at the date on which the provision in
question is to be applied

Quality of dialogue under Article 267

The case of Kobler demonstrated the doctrine of state liability whereby states could be
held liable for the mistakes of their national courts. Therefore the question arises as to
whether the exceptions allowed in CILFIT can be reconciled with such duties of final
courts?

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 question referred is of a hypothetical nature; Meilicke

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.

However in regard to the national perspective:

Outright judicial disobedience is still rare, for example most common instances of
disobedience are:
o

Conflict between EU law and national constitutional values

If national court thinks Court of Justice has exceeded its jurisdiction

Where national court seeks to avoid applying the Court of Justices answer

In the case of Arsenal FC v Reed

o

HC Laddie J refused to apply Courts ruling: claimed it had ruled on facts by

finding infringement of TM

But this was still overturned by CA

Time for change?

Is the open door policy still (if it ever was) a good idea?

AG Jacobs in the case of Wiener (which was a pre-Lisbon case) felt:

o

need for evolutionary approach to Art 267

EU legislation extended to new fields

volume of EU legislation greatly increased

need to avoid imbalance in numbers of cases from different MSS

concentrate on matters of greater importance and general interest

So essentially, has the time come to change the way and manner in which Article
267 works?

Is it time to recast the nature of the judicial relationship?

What is the relevance and point of Article 267 TFEU today?

o

Horizontal dialogue with all or Court of Justice as supreme constitutional

arbiter?

Arguments advocating efficiency and workload

o

Should there perhaps now be regional EU courts?

Is there a need for specialist courts dealing with particular types of

problems in accordance to subject matter? Made stronger when you think
that one already exists for civil service cases

Following AG Jacobs opinion in Weiner, should there arguably be a vetting

procedure to ensure that only important cases reach the Court of
Justice? Some sort of filter process

But problems arise as to who decides, how they decide and what the
criteria should be

Fragmentation is already occurring

o

limits under Arts 275-276 TFEU (CFSP and aspects of freedom, security and
justice)

Should all courts be made European?

Komareks views are particularly interesting:

o

Argues for final court references only, with narrow exceptions

Current approach undermines national judicial hierarchies

What does a mature legal system require?

Why are individuals so important anyway?

Constitutional/efficiency arguments in favour of cutting out lower court

references

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

Functions/usage of Art 267 has changed over time

Vital constitutional link between national courts and Court of Justice (bridges
national/EU legal systems)

Forum for airing/resolving conflicts?

Practice under Art 267: Horizontal co-operation or hierarchical diktat?

GENERAL PRINCIPLES OF LAW: FUNDAMENTAL RIGHTS

Fundamental rights is simply one of the general principles established by the Court of
Justice as part of its role as an exclusive interpreter of EU law. This establishment ties in
with the Courts desire to protect individuals, but also raises wider points of deliberations.
General principles in EU law:

Created by Court of Justice (though some subsequently recognised in Treaties)

o

Reveal things which arent explicitly contained in the treaty, but the treaty
does nevertheless play a role in this area

Act as limits upon EU institutions and MSS

o

Issue over whether horizontally applicable too (see work on Mangold etc)

Controversial issues for general principles are their applicability in

the horizontal sphere, and if they can be applied in such a manner,
then if and when

Constitutionalising function (see Kadi)

Some non-exhaustive examples of general principles are:

o

Proportionality

Non-discrimination

Protection of fundamental (human) rights

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:

See the Court in Mangold, Kucukdeveciand Rmer

Anti-age is horizontal general principleBut not others (sex orientation, annual

leave)

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

The sanctions embed the notion of recognition of the rights

Different strands of influence come from different sources at different times:

1) Courts case law
2) EU charter
3) ECHR
The Courts case law approach
Approach from the court is to look around the legal system where it can lay its hands on.
The sources are:

National constitutional traditions

o

InternationaleHandelsgesellschaft conveyed in fact, respect for

fundamental rights forms an integral part of the general principles of law
protected by the Court of Justice. The protection of such rights, whilst
inspired by the constitutional traditions common to the member states,
must be ensured within the framework of the structure and objectives of
the community.

International treaties to which MSS are signatories, especially the ECHR

o

In Nold v Commission it was said in safeguarding these fundamental rights,

the court is bound to draw inspiration from constitutional traditions
common to the member states, and it cannot therefore uphold measures
which are incompatible with fundamental rights recognised and protected
by the constitutions of those states. Similarly, international treaties for the
protection of human rights on which the member states have collaborated
or of which they are signatories, can supply guidelines which should be
followed within the framework of community law.

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

Drawing on sources of inspiration to formulate EU general principles in this way is

an important means of the constitutionalising of the legal order. In Kadi the Court
of Justice referred to the principles that form part of the very foundations of the
Union legal order, one of which is the protection of fundamental rights.

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?

In Kremzow a judge committed murder and argued his incarceration was a

restriction on free movement. It was decided that this was unconnected with his
criminal act and so wasnt within the EU dimension; he was unable to invoke such
arguments
o

Schmidberger concerned a local authority shutting down a motorway to allow a

protest and the court, under national law, had the option to hold that it was not a
breach of EU law and that if it was held to be a breach then freedom of expression
would override the interference.
o

Member states are not bound where the case falls outside the scope of
Union law

Showed how the circumstances could be treated as beyond the EU

dimension, and even if it was within the dimension it could be overridden

Although there needs to be an EU dimension, the court isnt always clear as to

where the boundary sits due to their need to adjudicate on manners

Does EU dimension threshold rule still apply?

The case of Karner concerned an action by competitor who sought to utilise

national rule prohibiting sale of goods as insolvency goods when no longer part of
insolvency so as to stop the other party advertising. The issue was if the national
law offended free movement, and the Court of Justice reasoned:
o

The facts were not caught by the specific provisions of the Directive against
misleading advertising

Not in breach of free movement rules

Firstly all EU provisions must be eliminated before touching on fundamental

rights, but despite not finding breach of the rules, the court felt they
need to apply fundamental rights

National law survives in its entirety but is subjected to an EU

fundamental rights review method

Does this implicitly overturn the EU dimension threshold?

Question must be asked if the court had forgotten the need for EU
dimension

All judges in Karner were academics and human rights specialists

o

Member states could take specific rules of directive to mean an unlimited

discretion

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

EU remains competent to supervise exercise of stricter rules

However, if fundamental rights are truly fundamental, then shouldnt they be able
to be invoked directly by the individual?

The EU dimension threshold requirement has been challenged, most notably by AG

Sharpston in a recent citizenship case of Ruiz Zambrano:

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.

Advocating that it shouldnt be about treaty direct effect or adoption of directives

in a specific area, but it should be does area X affect the existence and scope of an
EU competence; is it actually a matter that falls within the treaties? If so, you
should be able to plead fundamental rights even if the EU had not enacted
secondary legislation

Is there conflict between the Case law and the Charter?

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

Article 51 of the Charter however, is addressed to EU institutions and to MSS only

when they are implementing Union law
o

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

However the charter doesn't replace general principles

Conclusion (case law): the constitutional role of Fundamental rights

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

Autonomous legal system is the justification invoked

Fundamental rights necessary to justify Courts claim of complete EU legal

system?
The Charter of fundamental rights

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

Allowed for the consolidation of what were previously various sources of

fundamental rights contained in different documents into one visible
charter

This drew representation from different groups and so wasn't an introduction of

new rights. It was drafted by a 62-member convention drawn from the EU, member
states and national parliament reps

The charter also had a constitutional function:

o

First adopted as a solemn non-binding proclamation by EU institutions in

2000 at Nice Summit of EU

Subsequently included in the (failed) 2004 Constitutional Treaty

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

Therefore the charter could essentially be described as a creative

distillation of the rights contained in the various European and international
agreements and national constitutions on which the Court of Justice had
already drawn on for a number of years

Codifies existing rights as opposed to creating new ones

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 5: citizens rights

Chapter 6: justice

It also contains horizontal clauses which in Chapter 7 are stated to be the

general provisions governing the interpretation and application of the charter

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

Successive AGs urged Court to use Charter as source of inspiration for

interpretation of Treaties (cf general principles case law)

Court of First Instance mentioned Charter 2002

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

Tricky aspects of the Charter:

1) Art 51 scope of Charter and relationship to CJEUs existing case law on general
principles

The key to opening up the charter in regard to who it is addressed to and who can
rely on it

Article 51 states 1. The provisions of this Charter are addressed to the

institutions, bodies, offices and agencies of the Union with due regard for the
principle of subsidiarity and to the member states only when they are
implementing Union law. 2. This charter doesn't extend the field of application of
Union law beyond the powers of the Union or establish any new power or task for
the Union, or modify powers and tasks as defines in the Treaties.

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?

Art 51 Charter limits addressees to EU institutions and MSS only when

implementing EU law, but compare this to the Courts case law approach whereby
the member state must be found to act within the scope of EU law

AGs have called for consistency and a wide interpretation to be afforded to Article
51
o

Seem determined that the charter should not be interpreted in a restrictive

manner

AG Bot in Scattolon and AG Trstenjak in N.S v Sec State both tried to

persuade the Court of Justice that the Charter wasn't intended to have its
scope limited. They referred to the citations of the courts case law in the
Charter explanations as requiring a wide view of implementation.

Grand Chamber in NS: MSS exercising discretion conferred by an EU Regulation

amounted to implementation

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.

Shows court treating implementation in such a broad manner that it

doesnt contradict its previous 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.

This demonstrates an extensive interpretation

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

AG Trstenjak reasoned that Lida was seeking residence in a member state

other than that of the EU citizen concerned (his daughter). The denial of a
permit to Lida has a potential effect on the daughters EU free movement
and this was an EU dimension contained under Article 51 of the Charter. The
national court was to assess whether the interference was one with Article
7 of the Charter

Grapples with whether Article 51 requirement is satisfied and felt

that it would be possible that to deny the father a long term
residence in a neighbouring state may impede his daughters free
movement within the EU but leaves it to the court to determine if it
was an interference with family life

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

Held that Lidas situation wasn't governed by EU law and was

therefore not within the scope of Article 51 and Article 7 of the
Charter was not available to him

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 arguably not succeeded in narrowing down the scope of

fundamental rights protection

2) Differences between rights and principles

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.

Art 51 Respect rights, observe principles and promote application thereof

Principles are not free-standing rights

o

Principles have greater doubt attached to them in regard to whether or not

they can be directly accessed

No distinction between economic, political or social rights

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

Principles tied to national law/practices

o

Principles in the charter and normally expressed as being tied to national

practices; normally that principles tied up in X would be upheld if grounding
is found in national law

3) Scope of derogations from rights

If rights are truly fundamental they should be absolute and incapable of being
derogated from

Art 52 any limitation must respect essence of rights/freedoms

Subject to proportionality

must be necessary and genuinely meet objectives of general interest

NOT Article by Article (compare to ECHR)

o

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

4) Horizontal effect between private parties?

It would be unwise to suggest that the charter wouldnt have some legal impact on
rights of citizens in individual member states.

Prima facie there is no horizontal application. Article 51 addressees are EU

institutions and 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

Doing something with the charter doesn't necessarily mean giving it

horizontal effect

Some rights recognised by Court in previous (non-Charter) case law as

directly and horizontally effective: see Viking, Laval cases on single market
whereby the court came to conclusions that trade unions could cause
obstacles to the single market and so the charter might also attach
obligations on bodies which have some rule making functions. No evidence
in the case law for this yet however, but if the court has done this
elsewhere with the same rights then why can they not do the same with the
charter?

Because the charter has gathered concepts from elsewhere, such

concepts happen to already be horizontally effective

Relationship of FRs to Citizenship

Possibilities for Court to interpret Charter eg exclusionary effect of

Charter on private relations?

Compare with the case of Kucukdevici and effects of general

principles

AG Trstenjaks view in Dominguez

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?

Compare with Kucukdevici and effects of general principles

Does the charter create/embody general principles?

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.

Directive 2003/88: MSS to take measures to ensure every worker is entitled

to paid annual leave of at least 4 weeks in accordance withnational
legislation and/or practice

AG Trstenjaks view was:

No horizontal effect of directive

Art 31 only creates duty on EU institutions and MSS to provide

protection; does NOT have horizontal effect

Cannot rule out possibility that annual leave is a general principle

Cannot rule out possibility of exclusionary effects of general

principles (Kckdeveci)

Annual leave not specific enough to give rise to such an

effect

Rejects direct effect of principles as inconsistent with

Charter approach

Clearly she is contemplating the charter introducing legal change in

private relationships but is arguing for the court to make its mind up
and decide what the rules should be as you cannot have different
consequences depending on instrument

More interesting however is the Grand Chamber in the case, which is

essentially an evasive answer for the Charter

Only created obligation for states but no horizontal effect

with individual rights attached to it

whether a national provision must be disapplied in as much as it

conflicts with EU law arises only if no compatible interpretation of
that provision proves possible

Indirect effect solution available to French court

Directive capable of direct effect if defendant is organ of

state (for French court to verify)

No mention anywhere of the charter however

Despite the AGs judgment on what the charter has as its

legal consequences, the court didnt include the charter in
theirs.

Does indirect effect require interpretations compatible with

the Charter?

CJEU has still not used Charter horizontally (yet..)

So can the charter have horizontal direct effect?

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

So you either have a more expansive applicability of the charter, or a more

restrictive approach

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

Art 1(2): nothing in Title 4 of the Charter (solidarity) creates justiciable

rights in Poland/UK except in so far as Poland/UK has provided for such
rights in national law

Targets the solidarity provision

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

Regarding Article 1(1) Protocol:

Protocol not a general opt out from Charter

Art 1(1) does not question validity of Charter for Poland/UK

Merely reaffirms the normative content of Art 51(1) Charter

Fundamental validity of Charter in Poland/UK legal orders

Essentially, nothing in her opinion contained here which affects the

validity of the charter and no questioning ability of such validity

Regarding Article 2(2) Protocol:

Title 4 Charter hugely controversial in scope and content;

Art 1(2) seeks to clarify validity of Title 4 in Poland/UK legal orders

Excludes horizontal effect of Charter and new entitlements under

Title 4 against Poland/UK;

Rights in this case (asylum) not in Title 4 anyway!

This could essentially work in principle if there were other rights

under Title 4

Grand chamber said in NS

o

Regarding Article 1(1):

3rd recital to Protocol requires Charter to be applied by Polish/UK

courts

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

Regarding Article 1(2):

Article 2 of the protocol:

o

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!

This is an attempt at a much broader exclusion

AG Trstenjak said in NS regarding this Article

It is not a general opt out from the Charter

Art 2 applies solely to Charter provisions which make reference to

national laws and practices; not the case here

Some charter rights are expressly made subject to national

rules and practices

Where the charters own rights refer to national rules and

practices, the charter will only apply where such rules and
practices are in place

No definitive answer as to how this article actually works

Summary of the protocol:

o

Has a predictably restrictive interpretation:

CJEU general principles case law affirmed by Art 6 TEU (MSS cannot
opt out of these); eg right to strike (Viking)

Does Protocol offend EU citizenship requirements?

If Charter has nothing new, can opt out be possible regarding

(already) binding obligations?

Even UK in NS case in CA dropped its HC argument that the

fundamental rights set out in Charter could be relied upon against
the UK!

Protocol doesnt have much favour and the court has many ways of
circumventing the protocol if it chooses

Protocol doesnt attempt to opt out of anything beyond that in the

charter, but as the charter arguably doesnt introduce anything new
then this cannot take place

Will also extend to Czech Rep. on next accession Treaty

Likely to be subjected to restrictive interpretation:

CJEU general principles case law affirmed by Art 6 TEU (MSS cannot
opt out); eg right to strike (Viking)

Does Protocol offend EU citizenship requirements?

If Charter has nothing new, can opt out be possible regarding

(already) binding obligations?

Even UK in NS case accepted in argument that the fundamental

rights set out in Charter could be relied upon against the UK!
Overview of the charter so far:

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?

Possibility of more extensive Charter protection as hinted at in the case of DEB

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

In the case of Association Belge des Consommateurs Test-Achats v Belgian Council

o

Concerned EU Directive proviso allowing actuarial risk differences between

genders in life assurance premiums

Belgian national law takes advantage of proviso

Action of annulment of national rule; reference under Art 267 by Belgian

constitutional court

Grand Chamber: Directive proviso incompatible with Arts 21 and 23 Charter

Directive proviso invalid from 21 Dec 2012

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

Example is the DEB case concerning legal aid

o

Presented as an Art 47 Charter issue rather than an effectiveness case

under the pre-existing case law

Unresolved relations with existing case law on individual protection: see

Dominguez

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

It has huge potential as it is essentially an open invitation to the 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?

There are nevertheless doubts as to whether it ticks the visibility, coherence and certainty
boxes that were claimed for it

As demonstrated through the five headings examined above

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?

Accession of EU to the ECHR

This is the third strand and source of fundamental rights in the EU and could be seen as a
conflicting interest with the other sources:

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

Shouldnt be dismissed as it has implications as to how fundamental rights are

protected in the EU
The ECHR

This is a human rights convention which is an international agreement and organisation;

EU and ECHR are different legal systems and EU member states are signatories to the
international treaty which is the ECHR.

ECHR made by the Council of Europe as a pan-European international Treaty

organisation of 47 Contracting Parties providing external supervision of human
rights violations

All EU Member States are State parties to ECHR

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

The current situation:

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

Always been argued that there is a risk of Luxembourg and Strasbourg

treating the same right and situations in an inherently different manner and
the CJEU only sees the ECHR as a source of inspiration

ECHR only a source of inspiration for Court of Justice (see Kadi)

o

Judicial argument is that the CJEU should be accountable and accession to

the ECHR would make Strasbourg the primary adjudicator. If the EU
becomes a signatory it will provide transparency and clarity

Arguments for accession:

Credibility of EU as human rights protector

o

The Court of Justice was prominently accused of using human rights

discourse in an attempt to extend the influence of EU law over areas which
should remain the primary concern of the member states given their
political, cultural and ideological diversity.

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 to EU conditional on human rights standards

Court of Justice to be accountable to ECtHR regarding rights violations

o

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.

Clarity and coherence of sources for EU fundamental rights

The current position regarding gaps in 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

EU Regulation implementing UN sanctions against Yugoslavia

Irish impound aircraft owned by Yugoslavia but operated by Turkish airline

ECHR jurisdiction but no violation by Ireland: entitled to assume that

international organisations (EU) at least had equivalent Fundamental Rights
protection

Strasbourg replied by saying there was no violation by Ireland

because they were simply implementing an EU requirement

Also, whether this philosophy would be continued by Luxembourg

would change; there is a presumption that the EU has appropriate
fundamental rights standards

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.

In Connolly this gap in non-accession provisions is clearly demonstrated. In this

case, Connolly was an employee of the Commission who was made redundant and
sought observations to AG in a staffing action in EU courts but was refused. He
proceeded to claim violation of his right to a fair trial under Article 6 ECHR
o

Held that the EU not signatory, MSS not responsible either as violation not
within their jurisdiction

Relationship between CJEU and ECtHR to date:

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

There is a mixed picture as to the risk of conflicting views of same rights

Grogan rejected by Court of Justice; but violation of Art 10 ECHR

established in Open Door and Dublin Well Woman Centre in the
ECtHR

Divergence in older competition law cases over fair trial issues

Evidence of conflict under the same set of rights, but this is mainly from
the days of the Charter and when it was signed

Been a greater degree of congruence in recent years

For the last 5/6 years, Luxembourg in dealing with rights dealt with
by Strasbourg has followed and applied the Strasbourg decisions

Case C-256/11 Dereci (GC, 2011): Art 7 EU Charter must be same

as Art 8 ECHR as interpreted by the ECtHR

Where rights are expressed in the same language, Luxembourg is

trying to remain consistent with Strasbourg

Luxembourg can develop Strasbourg jurisprudence if it wants to, but as of yet has
not done so

Accession issues still needed to be resolved:

Competence of the EU to accede

o

EC (as it then was) prevented from acceding to ECHR by Opinion 2/94 of the
Court of Justice (1996)

Too significant a step, beyond EC Treaty competence as it didnt

have the competence to sign up to the ECHR due to lack of express
power so as to be able to carry it out

Court was simply adopting a textual argument so as to avoid

argument over interpretation

Lisbon change: now Art 6(2) TEU:

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

Protracted process of negotiation

Negotiation between Commission of the EU and a Steering

Committee of the Council of Europe (14, 7 non-EU States, 7 EU).

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

Object so far as possible to give EU same status as other parties to

ECHR

2011 Draft Agreement

Maintaining the autonomy of the EU legal order and the monopoly of interpretation
of EU law held by the Court of Justice
o

There are certain autonomy issues at hand

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

Big concern was being undermined by Strasbourg as to the meaning of EU

law

Protocol no 8 TEU required specific characteristics of EU and EU law to be

preserved

Would ECtHR finding of violation undermine Court of Justice monopoly over

EU law?

NO ECtHR would be accepting meaning of provision as domestically

interpreted (by EU) but that provision still subject to review against
ECHR

Strasbourg will accept the CJEUs meaning and then decide if

such a meaning breaches the ECHR. It will not interpret EU
law but simply considers if that EU act is a violation of the
ECHR

Any judgment by ECtHR declaratory; to make EU secondary act

invalid would still need Court of Justice ruling

Participation of EU institutions in ECHR organs

Which ECHR Protocols to sign up to

o

Not all MSS separate signatories to all Protocols: problem of back-door

agreement via EU signature

Question becomes if the EU signs up to anything any member state has

signed up to, or does it sign up to something that every member state has
signed up
Accession procedures

By the EU:

Unanimity in Council (even though accession not an extension of EU powers)

Consent of European Parliament

o

Means it acts through absolute consent of the majority of member states

Ratification by all MSS through domestic constitutional rules (Art 218 TFEU)

May involve Court Opinion (Art 218(11))

By the ECHR:

Accession agreement to be ratified by all parties to ECHR

Key aspects of agreement

Union institutions acts and conduct subject to ECHR

o

Could create jurisdiction of ECtHR in areas where Court of Justice has no

internal control (eg CFSP)

Scope for review of EU primary law (Treaties and the Charter) as well as secondary
law
o

Luxembourg essentially becomes reviewable on Strasbourg grounds, and

Strasbourg could be granted review power over areas which the CJEU
cannot and does not have the competence to review

Would also allow for review of primary EU law

Co-respondent mechanism to deal with division of responsibility between EU and

MSS for violations

Exhaustion of remedies and prior involvement of Court of Justice

EU participation in ECHR bodies

EU signs up to Protocols 1 and 6 only

o

EU only signs up to protocols 1 and 6 whilst other member states have

signed up to a variety of protocols
Would the Union or member states be responsible for violations?

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:

Allows EU or a MS to join the proceedings alongside the addressee of the

application
o

co-respondent idea would remove the pre-requisite from the procedures

Importance of this is that you become a full party to the proceedings and so
become responsible for the outcome

In the event of violation established, co-respondent equally bound (apportionment

then an internal EU matter)

This mechanism is a complete remedy under the ECHR

The Co-Respondent mechanism:

Adding the EU as co-respondent (where member state is being sued):

o

Where MS violation calls into question an EU law

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

Joining EU allows reparation (eg Court of Justice could declare invalidity of

EU Reg)

ECtHR decision over whether request to be Co-R is plausible

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

However you cannot force parties to become co-respondents and it

is up to them to decide if they want to; up to Strasbourg court to
decide if they are to allow it

Adding member state as co-respondent (where EU is being sued):

o

MS can only become Co-R if EU primary law at issue

Any Treaty amendment only possible through Member state

This possibility is limited anyway, and to one example where the

issue of primary law (TEU, TFEU or the Charter) is at hand

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

ECtHR decision over whether request to be Co-R is plausible

Strasbourg will decide on basis of plausibility test

Assessing the co-respondent mechanism:

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?

Major advantage of Co-R joining is that there is no requirement to exhaust

domestic remedies in the Co-Rs legal system

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:

No problem as individuals can challenge EU institutions before the Court of Justice

EU will be a domestic remedy for purposes of ECHR

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

As for cases in national law:

National court might opt for Art 267 ref to Court of Justice; but no compulsion to
use preliminary reference procedure

Prior involvement of the Court of Justice:

Two presidents of the Strasbourg and Luxembourg courts came to an agreement

whereby the Strasbourg court would never rule on incompatibility without first
knowing that the Luxembourg court felt in regards to the issue
o

Agreement reflects intervention of the Presidents of the ECtHR and CJEU to

avoid ECtHR ruling on compatibility with ECHR without prior involvement of
CJEU

Special procedure only where EU has status of Co-Respondent

o

Assessment by CJEU of the legal basis of an EU law alleged to violate the

ECHR; not binding on ECtHR

EU to ensure ruling delivered quickly via accelerated procedure

comparable to Art 267

Privileging the CJEU over national supreme courts?

CJEU is getting privileged treatment, primarily as a result of

Protocol 8
Summary

Accession of EU to ECHR will render EU institutions accountable

Will Bosphorus approach of ECtHR disappear?

o

Significant adjustments to secure autonomy of EU

o

Will not unless EU reviewed as separate entity

Co-Respondent mechanism and prior involvement of CJEU (not available to

any other institution or state)

May yet be wrecked

o

2 MSS currently blocking agreement

UK and France.

Primarily on a sovereignty argument which is surprising seeing as the

UK signed the Lisbon treaty stating that such an accession had to
take place and states were obliged to make this happen

CJEU may be requested to give an Opinion on the compatibility of the Draft

Agreement with the EU Treaties

Were this idea referred, the court will approve it as the two
concepts have been asserted towards Strasbourg

CRITIQUE OF THE COURT OF JUSTICE

Arguably the greatest progress in terms of EU integration is in the legal sphere, and this
could be taken to possibly convey the court moving towards a more constitutional
framework by which it is more involved.
To determine the contribution of the Court of Justice to EU law and legal integration it
will be necessary to:

Assess against range of legitimacy criteria

Demonstrate techniques of Court in constitutionalising the EU and its own position

Identify post-Lisbon opportunities and limitations to further development of

judicial role/activism
The Treaty base of the Courts role

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:

Acceptance by national courts. One way of assessing the courts legitimacy is

through seeing if people actually accept what the Courts say:
o

National courts send Art 267 TFEU references

National courts are eager to send references through Article 267

showing their acceptance; medium through which they challenge the
courts jurisdiction is through using the provisions by which
communicate

267 is the channel through which they are able to communicate with
Court

Compliance with CJEU rulings

National judicial muscle-flexing (eg BvG over successive Treaty

reforms; French Conseil dEtat over direct effect of directives)

The national courts just conform to the status quo

Acceptance by member states. More politically engaging is this aspect to

acceptance:
o

One instance of Treaty revision to limit previous judgments

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

Reasoning/consistency of Court of Justices decisions:

A court would look daft and incompetent if they were to change their mind
regularly and demonstrate inconsistency
o

Court waits for teleological interpretation

Any evidence of an arbitrary/unconvincing court?

o

Saga of (no) horizontal direct effect of directives

Use of general principles

Elasticity of key concepts: eg effectiveness

A political Court? From Grogan to the Protocol on Poland/UK re Charter on

fundamental rights; but cf abstentionism re subsidiarity

Can see the court as politically astute, as in Grogan

Is it a political statement that they are keeping out of subsidiarity

matters? Court is arguably like other courts in their nature

Single unanimous judgments, do they reinforce authority of Court or detrimental to

transparency of reasoning?
o

Will be a compromise as sometimes a dissenting argument is needed to

make the overarching argument more clear

Due to its compromising way of adjudicating, cant be expected to provide

the best answer to a question

Could be a lot clearer as to what it says

Different roles for different times?

Is judicial activism more justified if gaps or failures in EU (political) mechanisms?

o

Direct effect/state liability created to short-circuit enforcement via

Commission actions and embedded EU law

Titanium Dioxide and institutional turf wars

Inventing FRs protection via general principles

Titanium is a clear illustration of the court adapting itself to the

political turmoil and institutional turf wars

Fundamental rights good at conveying the worries of the court in

dealing with the case at hand and the wider threats of national
courts

If EU now a mature polity, then LESS activism?

o

Focus on constitution of EU and role as THE constitutional court

Increasing deference to ECtHR

BUT new jurisdictions: Charter, mainstreaming former 3rd pillar

Overall the above shows the court adapting to the surrounding political
environment
o

All been conducted through EU mechanisms

EU is an evolving constitutional court

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

International law claim had to be filtered through EU stance, such as

in Kadi

Shows shift towards constitutional court

Methods of the Court of Justice

There are certain concepts which the Court has adopted as part of its constitutional
building system:
1) Attaching dominance to the Treaty
o

Supremacy

Making Treaty work: effectiveness

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

2) Protecting individuals as beneficiaries of EU

o

Individuals (citizens) given enforceable EU rights and ability to challenge

national law

FRs, Charter and EU citizenship more recent tools

Invocation of supreme EU rights so as to ignore national provisions seeking

to limit or control what the citizens do. Most recent changes are
individually orientated and so the court is able to reinforce this strategy.
Court can continue to work with this way of interpreting the treaties in the
future as they now have more ammunition to do so

3) Curbing institutional freedom

o

National courts bound into EU order

Restraining EU and MSS institutional excesses: reliance on proportionality

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

4) Sealing off disobedience and exceptions

o

Approach to Art 267 TFEU inter-judicial dialogue

Extending reach of EU law: penetration of legal orders

267 dialogue is seen as open so as to lessen the threat of member states

and national courts from going about their business and taking matters into
their own hands; further you embed EU law, the more entrenched the EU
becomes
Achievement of the Court of Justice

A complete legal system of rights and remedies, including a basis of fundamental

rights (Kadi)
o

Provides a FR platform which ensured minimum protection for everyone and

Kadi shows how even international law will be filtered through the EUs own
legal system

An EU constitution? NB the role of FRs here

o

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?

CJEU as a supreme Constitutional Court of the EU albeit to become

subject to the ECtHR in Strasbourg when EU accedes to ECHR

To the extent that the CJEU becomes reviewable when acceding to

the ECHR it will arguably lose an element of its autonomy and
constitutional nature

Doesnt lose a great deal of its political function

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

Is EU law based on real values? AT Williams feels:

CJEU only concerned with pragmatism (eg the use of effectiveness as rationale)
o

There is no understanding as to what the Court actually stands for

A theory of interpretation, not a theory of justice

Might involvement with Charter make a difference?

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

A thin constitutional approach:

Unlikely to lead to EU identity-building?

Is pragmatism the basis for a Constitutional Court?

Ongoing constitutional challenges

Vertical challenges:

These arrangements will occupy the court in the future predominantly

Patrolling the EU/MSS division: the conferral of powers doctrine

EU/international law relationship

o

See Kadi (UN sanctions and ECHR issues)

CJEUs contribution to ECHR draft accession agreement

Horizontal challenges:

Balance of institutional powers within the EU: turf wars

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

Check on MSS and EU institutions

Guarantor of citizens (fundamental) rights

Integration and convergence through law

Accepting own subordination to review by ECtHR

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

However, is there something missing?

Values base for EU: beyond the single market?

A Union of MSS or a Union of Citizens?

A federalising or decentralising Court?

END OF TERM 1

THE SINGLE INTERNAL MARKET AND BEYOND

The concept of a common market was re-launched and re-packaged in the amendments
brought about by the Single European Act 1986
Central notion is now expressed in Article 26 TFEU:
The internal market shall comprise an area without internal frontiers in which the
free movement of goods, persons, services and capital is ensured in accordance with
the provisions of this treaty.

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

Internal market is the principle of free movement and elimination of

barriers to movement for goods, persons, services and capital

Free movement across borders basically means there should be no

discrimination against goods, persons, services or capital coming from other
member states

Internal market tied up with idea of no discrimination on grounds of origin

or nationality

There are four fundamental freedoms of the internal market which are expressed in
Article 26:

Goods

Persons

Services

Capital

The single market is therefore an area of free movement

Underlying issues
Idea of a person has extended from being merely in regard to workers

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

Reverse discrimination is prevalent throughout the EU but is nevertheless compatible with

the internal market

Discriminate against your own nationals but it cannot discriminate against nationals
from another member state

Been linked to the concept of EU citizenship; we are all EU citizens now

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:

Balance between legislature and judiciary is arguably a very political question #

Positive harmonisation is difficult to achieve and so to get around this problem of

positive harmonisation, the court of Justice has taken a very dynamic approach to
market integration
Elimination of trade barriers

Essentially the removal of barriers through:

Positive harmonisation (EU legislation)

Negative integration (case law)

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

Doesnt matter if there Is no single definition, but anything which is lawfully

produced across a member state; once it is recognised in one member state it must
be mutually recognised across the board; have to accept what is lawful in another
member state

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

These will be considered under Articles 34-36 TFEU

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:

Quantitative restrictions on imports and all measures having equivalent effect

shall be prohibited between member states

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:

Says essentially the same thing as Article 34 but in relation to exports

Article 36:

Derogation which underarches the above concepts

Needs to be a legitimate justification which has been put forward

Essentially you are given the list of treaty derogations and the justifications
permitted under the treaty

Number of justifications for restrictions of goods is more extensive than

justifications for restriction of persons

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

Starts to rethink its position and expanded notion 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

These are relatively powerful provisions

The subject matter of the prohibition under Article 34
The need for a state measure constituting a restriction

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

In EC Commission v France it was held that any administrative regulation which

showed a degree of trade then it would fall within ambit of section 34

In R v Pharmaceutical it was held the guidance notes of the society constituted a

measure within the terms of Article 34

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

In Schmidberger an action was brought challenging the restriction as violating

Article 34 of the treaty, and here the authorities authorised the right of the
protestors to demonstrate and in principle the restriction fell within the scope of
Article 34
o

Court invented a new mandatory requirement and justification in order to

enable the state to prove they were not responsible for a violation of Article
34. Used the protection of fundamental rights (freedom of expression and
the right to protest)

What we see in this case is a delicate balancing exercise between the

economic and fundamental freedom of goods on the one hand and on the
other the more fundamental rights of the people to protest

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

A quantitative restriction is a quota or ban.

Idea of a quantitative restriction of trade is essentially a numerical quota in terms

of allowing imported product

Can also be an outright ban

In the case of Dassonville a measure equivalent to a quantitative restriction (MEQR) was

defined as 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.
List of matters which can constitute an MEQR are specified in Article 2 of directive 70/50
and include:

Minimum or maximum prices for imported products

Less favourable prices for imported products

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

Conditions in respect of packaging, composition, identification, size, weight etc

which apply only to imported goods or which are different and more difficult to
satisfy than in the case of domestic goods

Giving of a preference to the purchase of domestic goods as opposed to imports, or

otherwise hindering the purchase of imports

Limiting publicity in respect of imported goods as compared with 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

A complete ban on a product is a quantitative restriction

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

Was a restriction on the import of scotch wiskey

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

Court held that:

o

All trading rules 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

Even without having to examine whether such measures are covered by

article 36, they must not constitute a means of arbitrary discrimination or a
disguised restriction on trade between member states

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

In Commission v Ireland there had to again be an authentication of the product on

the product itself. Irish government sought to promote sales of Irish goods, the

object being to achieve a switch of 3% in consumer spending from imports to

domestic products.
o

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

These can only be saved by article 36 derogations

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:

Different type of measure which is targeted

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

Dual regulatory burden on producers and manufacturers to satisfy home regulator

but also the regulatory authorities of the importing state; has cost ramifications
and in fact causes discrimination

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

German regulation required liqueurs to have alcoholic strength of 25% but

French had to be produced between 15-20%

Indistinctly applicable measure in the form of the German regulation

Court found that this indistinctly applicable rule is a measure having

equivalent effect to MEQR

Court decides that in the absence of common (standard on the content)

rules, it is for the member states to regulate

If there is a positive harmonisation of fruit liqueur standards

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 introduces a new set of mandatory requirements which go beyond the

justifications set out in 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

Effectiveness of fiscal supervision

Protection of public health

Fairness of commercial transactions

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

Encapsulated a principle of mutual recognition

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:

In Karner the courts used fundamental rights as another mandatory requirement

Environmental protection in Commission v Denmark

Improvement of working conditions in Oebel

Cinetheque demonstrated the including of protection of culture

Socio-cultural traditions in Stoke on Trent

Press diversity in Familiapress

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

In regard to proportionality, the restriction must be proportionate with the outcome/

justification being put forward by the state

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

The court will always look for a less restrictive approach:

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

D.Presumption of mutual recognition

According to the court in what is sometimes referred to as the second limb of the Cassis
judgment, if goods have been lawfully produced and marketed in one of the member
states, there is no reason why those goods shouldnt be introduced into other member
states. This is a rebuttable presumption however due to the mandatory requirements

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

Gives regulatory power to the home state of the manufacturer

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:

Article 34 is about cross-border trade and is only about restrictions on cross-border

activity
o

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 Deserbais an importer of Edam cheese from Germany into France was

prosecuted for unlawful use of a trade name. in Germany such cheese could be
lawfully produced with a fat content of 34.3% whereas in France it was restricted
to cheese with a fat content of 40%
o

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

Widening of the derogation grounds

Also brought to light the problem as to whether the single market is essentially about the
removal of obstacles to cross border trade or ANY barriers to trade?
Selling arrangements: limiting the Dassonville prohibition
Prior to the landmark ruling in Keck the ECJ had used different arguments to prevent some
types of sales rules from being caught by the Dassonville prohibition:

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

Also necessary to ascertain whether the effects of such national

rules exceed what is necessary to achieve the aim in view

The treaty must be interpreted as meaning that the prohibition

which it lays down doesnt apply to national rules prohibiting
retailers from opening their premises on Sunday where the
restrictive effects on community trade which may result there from
do not exceed the effects intrinsic to rules of that kind

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

However, rules concerning SELLING ARRANGEMENTS imposed an equal

burden on all those seeking to market goods in a particular territory;
purpose was not to regulate trade and they didnt prevent access to the
market

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

Goes on to make a crucial distinction between 2 different types of

restrictive national rules

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

Court develops these two categories of restrictions and says in para15 of

the judgment that product requirement rules definitely fall within the
scope of Article 34 and therefore need to be justified in order to be saved
by the member state

Court also confirms that Article 34 is about restrictions on intra-community trade

which discriminates on imports; really about tackling restrictions on intracommunity trade

What is a product characteristic rule?

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

Even though the relevant national legislation is directed against a method

of sales promotion, 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

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

The prohibition at issue impairs access of the products concerned to the

market of the member state of importation and consequently hinders free
movement of goods

Non-discriminatory restrictions on the use of products have also proven difficult to

assess.

The distinction drawn between selling arrangements and product characteristics

generated further questions as to how cases concerned with the use of products
should be regarded
o

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

In Commission v Italy, Italy prohibited motorcycles, mopeds, etc from towing

trailers even those specifically designed for use with such vehicles. ECJ held:
o

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

Application to products from other member states of national provisions

restricting or prohibiting certain selling arrangements isnt such as to hinder

directly or indirectly, actually or potentially, trade between member states

for the purposes of the case law flowing from Dassonville. Provided those
conditions are fulfilled, the application of such rules to the sale of products
from another member state meeting the requirements laid down by that
state is not by nature such as to prevent their access to the market or to
impede access any more than it impedes the access of domestic products

Consequently, measures adopted by a member state the object or effect of

which is to treat products coming from other member states less favourably
are to be regarded as measures having equivalent effect to quantitative
restrictions on imports within the meaning of the article.

Held that whilst the Italian rule fell within the ambit of Article 34 it could
be justified on grounds of public safety

In the Mickelsson case, the ECJ considered whether Article 34 should be

interpreted as precluding national regulations which prohibited the use of personal
watercraft on waters other than designated waterways
o

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

However they may be justified for some valid reason

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

This concerned prohibition on advertising directed at children under the age of 12

Court said that these rules/restrictions on advertising were certain selling

arrangements outside the scope of Article 34 and as selling arrangements, wouldnt
need to be justified, in principle.

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

However, whereas the court didnt specifically address issue of discrimination in Le

Clerk, in this case the court starts to look at whether or not an advertising brand of
particular products in a particular member state might or might not discriminate
against non-national manufacturers/traders

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 fact there might be discrimination against non-national traders

For member state to go on and justify restriction

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

Shouldnt be any discrimination against non-national consumers

Prohibition of advertising is liable to impede products of access by products from

other member states
o

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

According to para 17 of Keck, national measures restricting/prohibiting

selling arrangements must not be of such a kind to prevent access to the
market by products from other MS or impede access any more than they
impede the access of domestic products.

Carried on to say that a prohibition on advertising such as that at hand must be

regarded as affecting the marketing of products from other member states more
heavily than the marketing of domestic products and as therefore constituting an
obstacle to trade between member states caught by the treaty

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

The case of Apothekerverband concerned a prohibition of medicinal products by mail

order

Held that a prohibition of internet sales was more of an obstacle to pharmacies

based in other member states than those within Germany because the internet
provides a more significant way to gain direct access
o

Rule could impede access of imported medicine to the German market more
than domestic medicine

Essentially the legislation didnt affect domestic and imported products in

the same way

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

Whilst it was a selling arrangement it obliged traders from other member

states to establish an additional shop in the Austrian locality

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

Very slight discrimination is not caught by the terms of the treaty

First case post-Keck in regard to what selling arrangements are, is Le Clerc

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

Discrimination issue wasnt fully explored in this case

AG Jacobs however launched an attack on Keck describing its reasoning as

unsatisfactory and adding that I reach the conclusion that Article 34 should be
regarded as applying to non-discriminatory measures which are liable substantially
to restrict access to the market

Felt if there was a substantial restriction on that access then it should be

caught by Article 34. when the measure affected the goods themselves, as
in Cassis-type cases, then it would be presumed to have this substantial
impact

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 refused to follow him in this case

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

Very trivial cases arent caught by the terms of Article 34

Reverse discrimination and purely internal situations

Article 34 is only applicable to restrictions on imports, not measures which prejudice the
domestic product. Article 34 can only be used where there are restrictions on imports, and
cannot be used by domestic producers to challenge measures which prejudice the creation
of a national product

If you are a UK national, you cannot use EU rules to challenge production of things
within the UK market

If nothing crosses a border there is no entitlement to use Article 34

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

Argued this led to reverse discrimination as they were required to produce it

according to UK standards whereas those in other states didnt

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

Is the toleration of reverse discrimination compatible with a single market? Does it

inevitably produce a race to the bottom in terms of standards?

In Guimont there were restrictions in France concerning ementhal cheese affecting

French producers and the ingredients that needed to be in them.
o

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

A reply to the member state might be useful if national law were to

require that a national producer must be allowed to enjoy the same
rights as those which a producer of another MS would derive from EU
law in the same situation.

For example, if there were a domestic principle of equal treatment

whereby such discriminatory treatment would be unlawful

The courts should look at domestic law to see if reverse discrimination is

prohibited
The prohibition of article 35 relating to exports

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).

Quantitative restrictions on exports, and all measures having equivalent effect,

shall be prohibited between Member States.

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:

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions

on imports, exports or goods in transit justified on grounds of public morality,
public policy or public security; the protection of health and life of humans,
animals or plants; the protection of national treasures possessing artistic, historic
or archaeological value; or the protection of industrial and commercial property.

Such prohibitions or restrictions shall not, however, constitute a means of arbitrary

discrimination or a disguised restriction on trade between Member States.

So essentially, there needs to be a bona fide justification for any derogation

In the context of article 36, economic justifications cannot be put forward in order
to say restrictions on trade should take place
General matters

The list of exceptions contained in Article 36 is exhaustive. Economic arguments dont

constitute acceptable justifications although the borderline between economic and noneconomic arguments may be difficult to draw:

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

French government would be unable to meet with the resources available to

it

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

Successful justification on the basis of public security

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

Restriction has to be the least possible interference in order to achieve

objective of public health morality etc

ECJ held that petroleum products, because of their exceptional importance

as an energy source in the modern economy, are of fundamental importance
for a countrys existence since not only its economy but above all its
institutions, its essential public services and even the survival of the
inhabitants depend upon them. This could therefore seriously affect the
public security that article 36 allows states to protect

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

Public policy exemption was made out in this case

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

However the distinction between discriminatory and non-discriminatory measures hasnt

always been convincingly argued the ECJ. In the Belgian Waste case there was a Belgian
regional decree banning the importation of waste into the local area.

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

Article 36 paragraph 2 concerning the prohibition of arbitrary discrimination or disguised

restrictions had its function interpreted in Henn and Darby as to prevent restrictions
based on the grounds mentioned in the first paragraph from being diverted from their
proper purpose in such a way as to create discrimination in respect of goods originating in
other member states or indirectly to protect certain national products.
The burden of proof
This rests upon the member state to justify the head it pleads under Article 36. The case
of De Peijer set out the requirement that the member state identifies the likelihood and
seriousness of the harm which it is seeking to prevent by the restrictive means.

The legislative approach to the single market: harmonisation issues

Twin approaches to legislative action
Supervision:

National rules of a technical nature are required to be notified by member state

signatories to the commission for approval prior to implementation

Look at case law relating to incidental/exclusionary effect

Harmonisation:

The positive method of integration by creating EU-level rules

o

Member states have to agree amongst themselves as to the particular

standard that is to be applied

Compare with negative integration by the court in requiring national obstacles to

trade to be removed
o

Negative integration follows that anything lawful in one member state is

lawful in the others
The EUs power to harmonise

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

EU acts as a supervisor of member states initiatives in and around 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

In regard to Article 114:

Paragraphs 4 and 10 make provisions for certain derogations

Lengthy provision in general, but this 1st paragraph is key to EU power

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

Limits to the scope of Article 114

We see the EU attempt to use article 114 and the internal market for the justification for
introducing a new directive on Tobacco Advertising in the Tobacco Advertising case.

Germans thought this was a disguised public health measure as opposed to

something to do with the establishment of the internal market; wrong legal base
had been used and therefore the tobacco advertising directive didnt have a
legitimate legal base in the treaty

Germany was successful in the end

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

In effect, the legislation should contribute to the elimination of likely

obstacles

Or it should contribute to the removal of appreciable distortion of

competition resulting from the diverse member states rules

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

No cross-border activity as far as billboards or posters are concerned

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 upheld the validity of a revised Directive on tobacco advertising including

prohibitions on advertising in the press and on the radio.

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

Where Member States have taken, or are about to take, divergent

measures with respect to a product, which bring about different levels of
protection and thereby prevent the product concerned moving freely within
the EU, Art 114 TFEU authorises the EU legislature to intervene by adopting
appropriate measures (in compliance with the EU legal principles, in
particular the principle of proportionality).
Extent and nature of harmonisation

Various methods of harmonisation exist, requiring lesser or greater degrees of convergence

or uniformity. The ECJs own mutual recognition jurisprudence had a considerable impact
upon the style of legislative harmonisation
The result has been increasing reliance on minimum harmonisation, leaving member states
scope for the application of higher or stricter standards. The commissions so-called
new approach in the mid 1980s relied on the settling of essential requirements to be
met, rather than laying down uniform rigid rules

3 types of harmonisation:
1) Total
o

All 27 MS should agree

For example, cosmetics and the labelling of packaging of cosmetics.

Adopted a single standard across the EU

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

Useful in that you do not need an absolute agreement

In the case of Gallagher there was a health warming to cover at least 4% of

the surface area of cigarettes but the UK implementing legislation raised
requirement to 6% yet permitted the importation of cigarettes complying
with other member states implementing legislation
MS are able to set their own standard when the minimum
requirement is only the minimum requirement and this can entail
various consequences for domestic manufacturers
EU perspective is that reverse discrimination was the consequence of
the degree of harmonisation sought by the directive which laid down
only minimum requirements

Relationship between Article 36 TFEU and harmonisation

When a community regime of control is established for a particular product or range of
products as a result of harmonising directive, the need for the application of Articles 34-36
should in theory disappear. Justifications analogous to those listed in Article 36 are likely
to be included in secondary legislation, such as directives, in any event. However, it is
clear that the court is reluctant to exclude the application of treaty rules without a clear
indication that the harmonisation measures in a particular sector or field are total.

In regard to the relationship between article 36 and positive harmonisation

o

Court has been reluctant to rule out these derogations where there is
legislative harmonisation

Allows for a certain amount of member state autonomy where it would

otherwise be a harmonised regime; still scope for 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

Similar to provisions on goods in that the treaty is straightforward but there is

application of the treaty provisions through the case law

Consists of 4 paragraphs
o

1) talks specifically about workers

2) This freedom entails the abolition of any discrimination based on

nationality grounds between workers of different member states as far as
the employment is concerned; should be no discrimination as between
national and non-national workers

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

4) This paragraph effectively adds another derogation; the public service

justification. Provides for a fairly limited justification that member states
can put forward to limit jobs for their own nationals where those jobs are
somehow connected to public service

Where jobs are connected to public service in that member state,

then it is justified to not open up the job market to non-nationals

Courts have been keen to narrow down the definition of public

service so as to not allow a member state to, for example, reserve
all teaching jobs for nationals.

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

Third country nationals can nevertheless benefit if theyre married to an EU citizen,

but the normal rule is that if they arent a national they cant benefit

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

Makes clear that beneficiaries of community rules must be nationals of one

of the member states
Workers

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.

A worker must be defined in accordance with objective criteria which distinguish

the employment relationship

Essential feature of an employment relationship is that:

o

For a certain period of time

A person performs services

For and under the direction of another person

Essence of being a worker in the EU is that you are in an

employment relationship with an employer; must be a contractual
relationship between individual and employer

Self-employed persons arent workers under Article 45 and would fall

under the heading of established persons

In return for which they receive remuneration

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

Activity should in itself be genuine and effective in terms of its economic

contribution/input to the market

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

Said initially that participation in a community based on religion or another

form of philosophy falls within the field of application of community law
only in so far as it can be regarded as an economic activity within the
meaning of Article 2 of the treaty

In so far as the work constitutes an essential part of participation in that

community, the services which the latter provides to its members may be
regarded as being an indirect quid pro quo for their work

Remuneration doesnt have to be money and can be an exchange of benefit

in kind

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

For and under the direction of another person

Receives remuneration

The court looks for a combination of those factors to determine if someone is a

worker

Irrelevant, inconsequential factors are:

o

The sui generis nature of employment relationship

Level of productivity

The origin of funds of remuneration paid

The limited amount of the remuneration

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

The ECJ has held that Article 45 extends to 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

And that they have a genuine chance of being engaged

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

The source of the discrimination (identifying the defendant)

Unlike article 34 relating to goods, article 45 isnt confined to state measures

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

The principles of non-discrimination set out in Article 45 is drafted in general

terms and isnt specifically addressed to the member states. The prohibition must
be regarded as applying to private persons as well paras 30 and 36
Indirect discrimination

Types of restrictions caught by Article 45

Direct discrimination
o

Provisions which restrict jobs to nationals is very clearly caught by Article

45

In regard to direct discrimination, the court ruled that Article 45 was

directly applicable in the legal system of every member state and would
render inapplicable all contrary national law in the case of Commission v
French Republic

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

Makes it difficult for people from outside to satisfy the particular

requirement

If a condition of eligibility for a benefit which is more easily satisfied by

national than by non-national workers, then it is likely to fall foul of the
treaty

In OFlynn it was said that in order for indirect discrimination to be

established, it was not necessary to prove that a national measure in
practice affected a higher proportion of foreign workers, but merely
that the measure was intrinsically liable to affect migrant
workers more than nationals

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.

Requirement for teachers to have adequate knowledge of the Irish language

is compatible with EU law provided that the level of knowledge required is
proportionate to the objective pursued.

So essentially, here we have a public policy argument put forward and

accepted by the court to suggest that it is in the national cultural interest
that teachers be able to speak the national language and this is compatible
with EU law
Beyond discrimination: restrictions on access to the labour market

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

system developed by national and transnational football associations was found to be in

breach of Article 45

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

Provisions which preclude or deter a national of a member state from

leaving his country of origin constitute an obstacle to that freedom

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

Even if they apply without regard to the nationality of the worker

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

As for the justifications or derogations:

o

It could only be otherwise if those rules pursued a legitimate aim

compatible with the Treaty and

Were justified by pressing reasons of public interest.

Those rules would still have to be proportionate to the aim pursued

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

Where there is a non-discriminatory rule which nevertheless causes a barrier, that

rule is caught by Article 45 even if it isnt a non-discriminatory rule

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 Laytonen there were restrictions under Article 45 which prohibited basketball

clubs from using players from other member states in national competitions; court
held these were liable to inhibiting movement of players from other member states
and were contrary to Article 45

Koebler concerned an Austrian rule which gave a loyalty bonus to university

professors where they had worked for 15 years in Austria. Court said for these

purposes it was a restriction as it was an obstacle to accessing the education

market and it was a disincentive to move
Therefore, where the restrictions (direct/indirect/indiscriminatory) create an obstacle to
movement, they are all potentially caught by Article 45
Reverse discrimination
The court, as elsewhere in the fundamental freedoms, has been unwilling to interfere with
reverse discrimination. However, where nationals return home after exercising free
movement, EU law protections can still apply

Court is always quite concerned to break down any barriers or obstacles to

movement

Broad inclusion of provisions within scope of Article 45

Reverse discrimination is still tolerated, and court is happy to do so in purely

internal situations; where you are talking about movement within different
components of a state, this is a purely internal situation and doesnt trigger EU law

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 Singh an Indian was married to a UK national and then travelled to Germany to

work there before coming back to the UK, the UK contested the husbands right to
re-enter the UK, but it was held he had residency rights under EU law as opposed
to national law

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

Not in principle a purely internal situation as it has an impact on the rights of EU

citizens

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

Right to claim same social and tax advantages as national workers

In Mishell S the court limited the acquisitions of advantages/benefits for migrant

workers only to those benefits that were connected directly to the contract of
employment

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

Brings up complicated questions as to who is family; for the purposes of the

directive include spouse, a partner with whom the migrant has a registered
partnership, any direct descendants under the age of 21 or any children who are
otherwise dependant, and any dependant relatives in the ascending line
(grandparents) who are those directly dependant relatives

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

Economic reasons for limiting movement arent acceptable; to limit movement to

promote the economy or that it is necessary to ensure British jobs for British
workers cannot be made out as a justification

Public policy derogation

Some leeway for the member states to put this justification forward

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

Principle of discrimination requires equal treatment between nationals and

non-nationals

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

In Olazabal a Spanish national was a member of ETA who was sentenced to 18

months in prison in France followed by a 4 year ban on residing in the vicinity of
the Spanish French border. He argued this was discriminatory as French nationals
werent subject to any restriction as to where they could live, but the court
rejected his argument
o

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

Allowed for such a restriction being deemed to be proportionate without

any necessarily identical measures being applied to nationals

PROPORTIONALITY MUST ALWAYS BE CONSIDERED WHEN ONE TOUCHES ON

JUSTIFICATIONS!

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

Concerned a Greek person convicted of serious drug and violence offences

in Germany and he had lived for most of his life in Germany where he had a
wife and children. The court looked very closely at his right to family life
and said the national authorities when they make their assessment whether
to deport somebody must do so on a case by case basis and must decide a
fair balance between the legitimate interests of the state on the one hand
and the protection of fundamental rights on the other

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

Where they are EU migrants, criminal convictions themselves arent sufficient

reason to expel someone from the host state

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

Member states must, before making an expulsion decision on public policy or

security grounds, take account of considerations such as how long the individual
concerned has resided on its territory, his/her age, state of health, family and
economic situation, social and cultural integration into the host member state and
the extent of his/her links with the country of origin

Social and cultural integration in the host state is an important consideration

Need to be serious grounds to expel someone with permanent residence

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

Restriction on the availability of positions/posts in the public service

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

In order to benefit from this exemption, those duties had to be exercised on a

regular basis which wasnt the case in this particular example

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

Establishment is a branch of free movement of persons, including legal as well as

individual persons.

Applies to physical entities as well as legal entities

Linked to freedom of establishment is the recognition of qualifications as you go

about your profession in another state

This area governs the movement of self-employed persons (people who work for
themselves as opposed to somebody else)

Establishment is more of a permanent situation than a service provision

Distinguishing establishment and services
The treaty rules

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

Restrictions of freedom of establishment in another member state is prohibited,

and this concerns right to pursue activities as a self-employed individual and covers

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

What we want to achieve is a situation where qualifications from one member

state are recognised as equivalent in another; article 53 provides the legal base for
making secondary legislation to cover this issue of the mutual recognition of
qualifications/diplomas
o

Have been several attempts at secondary legislation, but this is largely

wrapped up in directive 2005/36

Requires the removal of restrictions on the right of individuals and companies to

maintain a permanent or settled place of business in a member state

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:

normally provided for remuneration,

in so far as they are not governed by provisions relating to goods, capital or

persons

without prejudice to the provisions of on establishment,

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

More temporary the movement the more able to differentiate between

establishment and services. But nevertheless, freedom to provide services under
article 56 entails the carrying out of an economic activity for a temporary period in
a member state in which either the provider or the recipient of the service is not
established

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

Companies (legal persons)

Article 56 secures free movement for

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

The concepts of workers, establishment and services are mutually exclusive;

cannot be all of them at the same time

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.

In law the registration requirement applied equally to everybody

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

Said freedom of establishment:

o

Useful authority to use when trying to distinguish between an established

person and a service provider

is a very broad concept allowing a Community national to participate, on

a stable and continuous basis in the economic life of a MS other than his
State of origin.

Set out the distinguishing factors between services and those of a temporary
nature
o

the duration of the provision of the service,

Its regularity, periodicity or continuity.

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

The case of SPUC v Grogan concerned access to medical services in another

member state. He brought a challenge arguing that the Irish position was contrary
to the provision to allow medical services in another member state
o

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

economic link between information provider and the service provider it

didnt come within the scope of the article
o

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

Argued the UK ban was an obstacle

Provision of a lottery constitutes a service for which there is a right to

distribute and receive in another member state

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

Could be justified for public policy reasons provided it was proportionate

The Carpenter decision concerned a UK national who had an advertising business

established in the UK and much of its work is carried out in the UK, but does carry
out business with companies in other member states. His wife was a third country
national and she was subject to deportation proceedings in the UK which she was
then able to challenge on the grounds that if she were to be deported this would
be detrimental to the Carpenter family life which in turn would affect his ability to
provide his services in another member state
o

Because he can demonstrate an element of cross border activity, he is a

designated service provider and therefore triggers the application of EU law
to his familys situation

This case also shows that if his right to family life is taken away so to is his
right to free movement

Shows a link between fundamental rights and freedom to move

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

As with workers, there is no kind of Keck exemption; non-discriminatory

restrictions which create an obstacle to movement are caught by the treaty
provision

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:

Applied in a non-discriminatory manner;

Justified by overriding reasons based on the general interest;

Suitable for securing the attainment of the objective which they pursue;

Must not go beyond what is necessary in order to attain that objective.

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 looks at the obstacle he faces in terms of a restriction on his movement

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

The rule amounts to a hindrance to the movement of this particular student

Basic principle is that qualifications gained by other member states must be

recognised by the host state

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

Gebhard was established in Italy because he pursued a professional activity on a

stable and continuous basis and the Italian rule was likely to hinder or make less
attractive the exercise of his fundamental freedom.

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

national measures liable to hinder or make less attractive the exercise of

fundamental freedoms guaranteed by the treaty must fulfil 4 conditions:
must be applied in a non-discriminatory manner, must be justified by
imperative requirements in the general interest, must be suitable for
securing the attainment of the objective which they pursue, and they must
not go beyond what is necessary in order to attain it

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

Shows an adoption of an obstacle approach rather than a discriminatory approach

Centros, concerning establishment of companies in another member state, essentially

showed how the use of the system wasnt an abuse of it. In here, Denmark had onerous
rules on the incorporation of companies there, had restrictive rules relating to how much
financial capital the company had to have in order to incorporate themselves in Denmark.

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

To refuse to register a branch of a company having its registered office in

another member state, the result is that companies formed in accordance
with the law of that other member state are prevented from exercising the
freedom of establishment conferred on them by the articles of the treaty

Consequently, the practice constitutes an obstacle to the exercise of the

freedoms guaranteed by those provisions

Member state is entitled to take measures designed to prevent certain of its

nationals from attempting, under cover of the rights created by the treaty,
improperly to circumvent their national legislation or to prevent individuals
from improperly or fraudulently taking advantage of provisions of
community law

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

Restriction on where people live

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

In Uberseering which was in regard to the establishment of companies in another member

state, there was a refusal by Germany to recognise a company that had been incorporated
in another member state which refused it to pursue a legal action; it would have to
reincorporate in Germany in order to pursue that legal action in Germany

Found that the German restriction contravened article 49

There was no requirement in the general interest or public policy that could justify
this restriction

Was held to be too onerous to be capable of being justified on grounds of

protecting shareholders or creditors

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

Court said the UK rule amounted to an obstacle to movement and a restriction on

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)

Workers understandably threatened industrial action, and question arose whether

the treaty prohibits industrial action and covers it where it is carried out by trade
unions and is aimed at preventing the employer from exercising freedom of
establishment

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

Confirms earlier case-law which held that fundamental rights had to be

balanced against the protection of the economic freedoms

Collective action designed to induce a business not to exercise its freedom

of establishment (ie not to relocate to another MS) amounts to a restriction.

Court eventually comes out in favour of freedom of establishment

Ruled ultimately that the collective action constituted a restriction on vikings

exercise of its right to freedom of establishment in Estonia by making it less
attractive or pointless to re-flag there, and that it was for the national court to
determine whether the collective action might be justified as a proportionate and
necessary means of protecting the rights of workers

Stated how a restriction is justified if:

o

it pursues a legitimate objective

is justified by overriding reasons of public interest;

is suitable and proportionate

Application:
o

collective action could constitute a legitimate interest but not if it were

established that the jobs or conditions of employment at issue were not
jeopardised or under serious threat

the economic objectives of the EU must be balanced against social policy

objectives

a policy of opposing the registration of ships in another state is not capable

of justification under Article 49

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,

When it is liable to prohibit or otherwise impede the activities of a provider of

services established in another MS where he lawfully provides similar services.

AG Jacobs view in Sager is particularly interesting:

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

Non-discriminatory restrictions on the free movement of services should be

approached in the same way as non-discriminatory restrictions on the free
movement of goods under the Cassis line of case-law

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

The principle should, I think, be that if an undertaking complies with the

legislation of the member state in which it is established it may provide services in
another member state, even though the provision of such services wouldnt
normally be lawful under the laws of the second member state. Restrictions
imposed by those laws can only be applied against the foreign undertaking if they
are justified by some requirement that is compatible with the aims of the
community

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.

Those requirements must be objectively necessary

And they must not exceed what is necessary to attain those objectives.
o

Proportionality test again applies to the justification put forward as being in

the public interest

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

Essentially, If an effect on an individuals access to the market of another member

state can be shown, then regardless of the equally restrictive effect on situations
wholly internal to a member state, the measure in question will fall within the
scope of EU law and require justification

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

Court found this restriction to be caught by EU law even if there was no

discrimination on the grounds of nationality

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

Health care cases

The area of Health care has seen a growing number of cases coming up here where
individuals are seeking access to cross-border health care services in another member
state

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

In Grogan concerning freedom of information in regard to abortion services.

Abortion constitutes a medical service and is within the scope of the treaty; went
on to decide there was no economic connection
o

Medical services fall within scope of Article 56

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

Once again the principles must be proportionate to that justification

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

This ratchets up the expenses required to be provided by the NHS

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

Balance is drawn in favour of the fundamental right in this case

The protection of fundamental rights is a legitimate interest which, in principle,

justifies a restriction of the obligations imposed by EU law, even those concerning a
fundamental freedom guaranteed by the Treaty such as the freedom to provide
services (ref. to Schmidberger).

EU law does not preclude an economic activity consisting of the commercial

exploitation of games simulating acts of homicide from being made subject to a
national prohibition measure adopted on grounds of protecting public policy by
reason of the fact that that activity is an affront to human dignity.

Laval concerned a decision dissimilar to that in Viking in relation to establishment. There

was a blockade of a building site in Sweden which was designed to prevent a construction
company from using foreign workers who were not covered by a collective bargaining
agreement in Sweden and therefore not entitled to the same levels of pay that Swedish
workers would be.

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

seems to extend the direct effect of article 56 in a more horizontal situation

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

Part of the rationale of this broad interpretation is the effective protection of

individuals who might seek to move, work or provide services in other member
states
Treaty derogations

Article 52 TFEU: permits derogations from freedom of establishment on grounds of public

policy, public security, public health
Article 51 TFEU: exemptions for professions requiring the exercise of official authority

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

In Commission v Belgium and Commission v Italy court said activity of security

firms were not specifically connected with the 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

In the context of establishment by those seeking to pursue a profession, a major obstacle

to securing the single market arises from differences in qualification requirements
between member states. Early attempts at sectoral harmonization through legislation
encountered resistance and delay. However, the combined effects of the ECJs general
principles and a change in legislative approach have made substantial inroads into the
problems of recognition.

If qualifications arent accepted as equivalent, this is a major barrier to the

movement of persons and services etc.

Initial approach was to introduce a series of sectoral measures which targeted

specific activities and professions and sought to harmonise the qualifications for
jobs such as doctors, nurses, vets, dentists and architects
o

EU began to introduce measures to lay down minimum levels of training in

order to be able to exercise these professions

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

Court says that direct nationality discrimination is prohibited by the treaty

unless it can be justified

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

However, assessment of the equivalence of the foreign diploma must be

effected exclusively in the light of the level of knowledge and qualifications
(i.e. objectively).

Having regard to the nature and duration of the studies and practical
training which the diploma certifies that he has carried out.

Right to judicial review

In Vlassopoulou her authorisation to practice in the German bar was rejected on

the ground that she lacked the necessary qualifications because she hadnt passed
the relevant German examinations
o

ECJ began by ruling that even the non-discriminatory application of national

qualification requirements could hinder the exercise of freedom of
establishment

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

MS to compare migrants qualifications with those required by the

national system with a view to determining equivalence.

If equivalent: host MS obliged to recognise the diploma.

If not, possibility to demonstrate relevant qualification through

either

a course of study

or practical experience.

Demonstrates the obligations of relevant national authorities to make

comparisons

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

Instead of seeking harmonisation of qualifications in particular professions, the

commission switched its approach in the late 1980s to horizontal directives aimed at
establishing a general system of recognition
EU started off with a series of vertical approach to qualifications, but this has been
changed to a horizontal one and the legislature has sought to adopt a general system of
recognition of qualifications obtained in other member states

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.

The directive was found to be sufficiently clear and precise to be directly

effective, said in Beuttenmuller.

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

The 2 directives show a horizontal approach to qualifications as opposed to a

sectoral one

Directive 2005/36/EC on the recognition of professional qualifications OJ L255/22

consolidates much of the previous legislation. The new directive retains the same
approach and principles as the previous legislation on the mutual recognition of

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):

The recognition of professional qualifications by the host MS allows the beneficiary

to gain access in that MS to the same profession as that for which he is qualified in
the home state.

And to pursue it in the host state under the same conditions as its nationals.

Personal scope:
o

Applies to all nationals of a MS wishing to pursue a regulated profession in

a MS other than in which they obtained their professional qualification.

As to what a regulated profession is, it is a pursuit of a professional

activity access to which is subject to possession of a specific professional
qualifications

Article 5 of the 2005/36 directive is in regard to the ability to provide services in another
state (title 3)

Ch1 provides for a general system of recognition of professional qualifications

o

Default scenario based on mutual recognition

Compensatory measures

Aptitude test or adaptation period (3 year max)

the training is one year shorter than that required by the host MS

the training received covers substantially different matters to those

covered by the formal training in the host MS

If

Ch2 system of automatic recognition of qualifications attested to by professional

experience
o

unqualified mutual recognition for industrial, craft and commercial

professions

Ch 3 system of automatic recognition of qualifications for specific professions

o

unqualified mutual recognition

combined with partial harmonization

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

he is established. The application of this principle, has, however been diluted by

numerous derogations

freedom to provide services is now in Article 16(1)

article 16(2) lists restrictions which are prohibited

Free movement of lawyers

Freedom of lawyers to move to provide legal services or to establish themselves in other

member states has raised particularly tricky issues, not least because of the different
legal systems in Europe. Where member states have sought to reserve the provision of
legal services to their own nationals or those with legal qualifications obtained in the
member state by claiming that the provision of such services is connected with the
exercise of official authority within the state, the ECJ has been particularly swift to
declare such attempts unlawful

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

Specifically provides that a lawyers authorisation to practice in their home state

must be duly recognised by the host state

Lawyers have 2 options:

1) Can practice permanently and without restriction in a member state under
the title from their 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

Court dismissed challenges by Luxembourg and the directive was successfully

enacted and therefore regulates the position of lawyers today