EU Law Lecture Notes

EU LAW Law Trove (OUP) Marshall Plan

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5 June 1947 Cash grants to European countries Conditions: o Co-operation in the distribution of the aid o Progressive abolishment of trade barriers

A committee for European Economic Co-operation was established

HISTORY OF THE EU 1950 – 2010 Interpretation and understanding the regulations. After the WWII there was a period of poverty – people demoralized. Not enough food, harsh winters and little money. No state money – for imports. EU countries devastated by the war. Founders of the EU: - Konrad Adenauer - Winston Churchill - Alcide De Gasperi - Robert Schuman - Jean Monnet Decided to reconstruct Europe after the war. Co-operated politically. Schuman Declaration 9th May 1950: Proposed for all countries to get together and co-operate in terms of coal and steel. Decided to pool resources and production and be economically stronger. Economic dominance of the US Military dominance of the Soviet Union Possible was with Germany in the future

Six member states : -

France Germany Luxembourg Italy Netherlands Belgium

Signed a treaty : European Coal and Steel Community Treaty.

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Political analysts say the real reason for signing a treaty was to keep an eye on their neighbours – prime reasons for war and so to sign a treaty removes the potential occurrence of a war with neighbour countries. Reasons for EEC treaty: - Political reason – reconstruct themselves after the war - Peach, prosperity and solidarity. Concept of EU Integration Integration can be considered both as an economical process and as a legal method - An economical process: o Absence of internal borders, applying to all trade of goods. o Institution of a Common Customs Tariff applying to goods from third countries o Elaboration of EU policies - A legal method o Reorganization of powers and sovereignties o Conferral of competencies from Member States to the EU institutions Concept of Co-operation - Political based co-operation between States which representatives meet periodically to adopt political decisions, normally by unanimity - Individual States’ interests are thus represented - Soft Law instruments are normally adopted – decisions, positions, declarations Neo-functionalism - Economic integration will lead to political integration - Supranational institutions of the EU will create a supranational agenda prevailing over national interests - The supranational political unity will be reinforced by the formation of supranational interest groups (public and private) TREATIES – ENTRY TO FORCE 1952 Treaty of Paris ECCS (European Coal and Steel Community) - the pragmatic approach 1958 Treaties of Rome ECC (European Economic Community) and EURATOM (European Atomic Energy Community) 1987 The Single European Act 1993 Treaty of Maastricht – EU 1999 Treaty of Amsterdam 2003 Treaty of Nice 2009 Treaty of Lisbon

Three Treaties:

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Politics and economics inextricably linked 18 April 1951 – Treaty of Paris o The European Coal and Steel Community (ECSC)  Sent the conditions for the speedy establishment for the growth of nuclear energy. 25 March 1957 – Treaties of Rome o The European Economic Community (EEC) and  Aim to create a common market.  **EEC treaty is central to the development of the EU o The European Atomic Energy Community (EURATOM) Primary aim to ensure lasting peace.

Aims of the EEC Treaty “Determined to lay down the foundations of an ever closer union among the peoples of Europe” Resolved to ensure the economic ic and social progress of their countries buy common action to eliminate the barriers which divide Europe …Intending to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principle of the Charter of the United Nations Resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who ********** NOVELTY Novelty of the system set up in 1951 and 1957 can be assessed from 2 points of view: Institutional novelty: The community method -

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Institutions independent from Member states High Authority o EEC authority which was given the power to promulgate binding decisions for the 6 member states. Different from the traditional model of intergovernmental co-operation o Up to this point, there was the position that member states couldn’t be bound if they hadn’t given their consent. Idea that EU membership carries with it a curtailment of national power to act unilaterally. o (to some degree) The European Commission must act in the interest of the Community o Powers are a lot stronger o Overarching – interests of the community. o Created the ECJ: The European Court of Justice (ECJ): o Interpretation and application of legislation and terms of the treaty o Independent and impartial from member states’ courts.  As membership grew, it was clear that one ECJ wasn’t able to deal with it all – European Court of First Instance created. The European Parliament The Council

The ECJ later tried to define what these new aims were: **Case 26/62 Van Gend en Loos [1963]: “ The EEC constitutes a new legal order of international law for the benefit of which the states have limited their

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sovereign rights, albeit within limited fields, and the subjects of which compromise not only Member states but also their nationals” - Forms the basis for the Court’s case law on supremacy, direct effect and State liability. -

Qualified majority voting was introduced in 1986 by the Single European Act 2/3 of the votes cast in favour of a measure required, as opposed to unanimity QMV and unanimity coexist: depends on area at stake QMV means that a MS (member state) can now be bound by a measure even if it voted against it.

Substantive novelty: The internal market. -

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Article 3 TEU lays down objectives of EEC: o Harmonious development of economic activities o To increase stability – reconstruct after the war o Raise the living standards Two means to do so: o The establishment of a common market o Economic policies.  Agreement on how to deal with economical issues.

Substantial novelty of a common market. What is a common market? “The concept of a common market involves the elimination of all obstacles teht intra-Community trade in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market (C-15/81 Shul Goals of the EEC Treaty (Treaty of Rome 1957): - To simplify trade and economic activities - Increase standard of living - To boost economies - Intended benefit: more consumer choice, effective regulation, increased mobility (specialisation, regulations in terms of alcohol and pornography and food safety) o Abolish obstacles of  free movement of  goods  people  services and  capital. Leads to more tolerance and multiculturalism across Europe. EEC set in motion a harmonization of economic policy. Agreements include regulations and limitations as part of the EEC. Policies were made sure to have consistence of provisions and application of provisions – done by the ECJ. Criticism of the EEC - Three Treaties with their own institutions o Each had their own way of working – not compatible. - Merger Treaty of 1967 created common institutions and simplified structure – operated over all three treaties

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o With this, 6 member states became known as the European Economic Communities. Criticism after 1967 is that those treaties were still too economically based. Paris Summit of 1972 In the 70s, EEC was too economically focused. Aimed to broaden the focus: - Need for flanking policies: o Environmental protection o Labour protection o Consumer protection  Anything that supports free movement. - Substantive reform – SEA 1986 Single European Act 1986 Created a whole range of treaty amendments. - 1986: Single European Act (SEA) o Aim of institutional changes:  Qualified Majority Voting  Increasing role of the European parliament (introduction of the co-operation procedure)  Establishment of a Court of First Instance CFI  Formalisation of the European Council  NOTE: European Council is not the Council of Ministers!!! NB: European Council is different to Council of Europe and Council of Ministers. Substantive Changes: - Attributed competencies o Environmental Policy o Health and Safety at work o Definition of the Internal Market in Article 26 TFEU (Formerly 14 EC) European Council merely defines the political direction. Council of Europe – International body – NOTHING TO DO WITH THIS COURSE. Decision making body : Law Making – Council of Ministers (Council of EU – ‘Council”) 1986 Act formalized the European Council (as mentioned in Treaty of Lisbon). -

1992: Treaty of the European Union (TEU), also referred to as the Maastricht Treaty 1997: Amsterdam Treaty 2000: Nice Treaty

THE CREATION OF THE EUROPEAN UNION - Maastricht 1992, TEU -

Enthusiasm following the adoption of the SEA TEU (or Maastrict Treaty) adopted in February 1992; entered into force in November 1993 Considerable amount of dissatisfaction: o Complexity o Ambivalence o Fragmentation. The Treaty brought everything together under a common roof.

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If you join the EU you commit to the pillars and regulations.

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First Pillar: - Community Integration Method The ‘E’ is dropped – the commitments were far too difficult to achieve under the EEC. European Community: - Customs union and Single Market - Common Agricultural Policy - Common Fisheries Policy - EU Competition Law - Economic and monetary union etc European Coal and Steel Community (ECSC, until 2002) - Coal and Steel Industry

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European Atomic Energy Community (EURATOM) - Nuclear power Second Pillar – Intergovernmental Cooperation Method The Common Foreign and Security Policy – deals with immigration etc. Foreign Policy: - Human Rights - Democracy - Foreign Aid Security Policy: - Common Security and Defence Policy - EU battle groups - Helsinki Headline Goal – Force Catalogue - Peacekeeping Third Pillar – Police and Judicial Co-operation in Criminal Matters (PJCC) Internal criminal matters. -

Drug trafficking and weapons smuggling Terrorism Trafficking in human beings Organized crime Bribery and fraud

These pillars made matters more complex and thus three different ways of dealing with things. However it has created the European Union – birthplace of EU. The First Pillar does not exist any more – disappeared with the Treaty of Lisbon. The TEU creates the EU: a new political entity. The TEU includes 2 new fields of activity to be pursued by the European Union: the Common Foreign and Security Policy and Justice and Home Affairs These areas of EU activity are not EC competencies. The TEU does not replace the EC Treaty; it amends it. Complexity: The TEU was meant to bring everything together – it was part of the EU it just wants regulated together in one treaty. Arguments in favour of the TEU 1992 structure: - Common Roof - Common insitutions o The Council, the Commission and the European Parliament and the Court  However this created a lot more work for the ECJ o The same revision procedure - These changes were meant to make the EU less complex. Arguments against the structure: - 2 fundamentally different methods of implementation o The first pillar is characterised by the Community method  The method established previously and the orginial novelties that were created with the coal and steel treaty.

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o The second and third pillars are characterised by the intergovernmental method No financial autonomy (see later notes) EC had legal personality; the EU does not. o Most tricky issue o The first pillar has legal personality, but the whole EU does not. o Some critics said that giving legal personality to the EU will compromise national sovereignty – ongoing debate. o Other said that the EC had legal personality, why can’t there be legal personality for the EU too?

Ambivalence: - Expressly stated, Article 5 required the community o act within the limits of its power: o Subsidiarity – decisions should be taken as closely as possible to its people in order to curtail the power of the EU.  Where the member state is in a position to act in the power of its people, it should. If not possible, decisions should be made by the EU.  EC can only act where it is empowered to do so - Introduction of complementary competences (also referred to as supportive competence) - Some important exclusions from EC competence o Example of wages, right to strike The TEU aimed at more integration: - Extension of competence: o Working conditions beyond health and safety at work o Consumer protection o Public health - Expansion of existing areas: o Environmental protection - The EEC is renamed the EC - European citizenship - Extension of qualified majority voting - Co-decision procedure - At the same time, some signs of caution: Signs of Caution: - Article 5 EC - Introduction to the principle of subsidiarity - Express statement that EC cvan only act where it is empowered to do so - Complementary competencies (supportive competence) - Some clear exclusions from competence Fragmentation: Treaty of Maastricht, countries began to not follow the treaty. There were then opt-outs created. Countries would sign up to the Treaty with the intention of excluding some of the main requirements of the Treaty itself. - Opt-outs secured in various fields of Community action: o Social Chapter (negotiated by John Major in 1991)  Dealt with social rights/policy.  Argued that the UK had its own social policy and thus didn’t want to be dictated by the EU as to what social rights were.  Later in 1997 the UK agreed to the social rights – temporary opt out) o Third Stage of the EMU  Creation of the Euro – Britain opted out. o Charter of fundamental rights – Britain later signed up to that in 2005. - Schengen Agreement which took effect in 1995 o European Union.

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o Because of these opt outs, the Treaty of Maastricht was considered too flexible, variable etc. Talks about variable geometry, flexibility, enhanced cooperation… Treaty of Maastricht was considered difficult.

The Amsterdam Treaty 1997 - Aim of simplification in view of forthcoming enlargements. - Signed in October 1997; entered into force in May 1999 - Renumbering many of the articles – didn’t have great impact. - The Amsterdam Treaty reflects a more cautious approach, after lessons learned with the TEU which had met with strong opposition. o All these treaty amendments created a new benefit that new member states could join. o A new member state could only join when a new treaty was created. - Further extended the scope of qualified majority voting in Council o Council is 1 of 3 decision making bodies with regards law making. - Progress of European Social Policy o No UK opt-out any longer on social policy. o Sex equality (Article 141 EC) better protected  And right to equality – non discrimination was expanded and better protected. o Article 13 EC: general non-discrimination clause o New article Employment rights. o Treaty of Amsterdam - New Title VIII – incorporation at EU level. - Enhanced Cooperation (Article 11 and Title VII) Member states became fed up with new treaties, expansion, etc etc. 2 major shortcomings of the Treaty of Amsterdam: - Hasn’t really dealt with fundamental rights – should they have a bill of rights? - Rapid enlargement – began with 6 member states but then grew to 27 – more people to consider with regards to amendments, policies and strategies. o Critics said Amsterdam Treaty didn’t create much response to these issues o Matters outstanding and this treaty wasn’t addressing any issues. The Treaty of Nice 2001 “The culmination of all confusion”. Member states who had to have a referendum to agree on new treaty got particularly frustrated. -

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Signed in February 2001; entered into force in February 2003 It dealt mostly with reforming the institutions so that the Union could function efficiently after its enlargement to 25 member states o Reforming the institutions and still with the Greek Temple (3 pillars) Extension of qualified majority voting to more areas of Community action, and in particular Article 13(2) on non-discrimination and Article 18(2) on citizenship The proclamation of the EU Charter of Fundamental Rights – not (yet!) legally binding but nonetheless influential (10 years later in 2011– Treaty of Lisbon made the Charter of Fundamental Rights legally binding) o Drawn up in 2000. The Nice Treaty is the point where the members of Europe become very fed up.

Irish member state – need a referendum for every treaty amendment. Treaty of Nice was rejected by Ireland, however a second attempt was later accepted. Discussion came about whether the EC should have a constitution. What Next?

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Difficult structure, multiplicity of texts A Convention brought together representatives of the MS, EP, national parliaments and Commission Public debate in 2002 and 2003 later 2004. In-depth reform of the Union proposed to make it more effective, more transparent, more comprehensible and close to European citizens

10 member states arranged for a referendum but they didn’t go well – decision by those member states was quite definite – they did not want a constitution. A Constitution for Europe -

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Part I: o Principles, objectives and institutional provisions governing the new European Union Part II: o European Charter of Fundamental Rights – would become legally binding Part III: o Provisions governing the policies and functioning of the Union (including provisions on the internal market, economic and monetary union, the area of freedom, security and justice, the common foreign and security policy (CFSP), and the functioning of the institutions) Part IV: o General and final provisions, including entry into force, the procedure for revising the Constitution and the repeal of earlier Treaties

Constitution was not voted in EC countries by referendum. No Constitution BUT Lisbon Treaty - To enter into force, the Treaty had to be ratified by all the MS in accordance with their constitutional rules (parliamentary ratification or referendum) o Ratification problems encountered most notably in France and the Netherlands in May and June 2005 - “Period of reflection” on the future of Europe launched in June 2005 - European Council of June 2007: agreement to convene an IGC to finalise and adopt, not a Constitution, but a reform treaty for the European Union. o Signature of the treaty of Lisbon on the 13th December 2007 o Ratified in 2009 Having all this debate on the public stage was not helping – observed negatively by the people of Europe. Period of reflection! The EC found an agreement to have more meetings and finalise and adopt a Treaty of Lisbon.

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The Treaty of Lisbon 2007 (2009) - Created 2 new treaties to replace previous framework o Wanted transparency etc. o The TEU and the TFEU (Treaty on the Functioning of the European Union) - Abolition of 3 pillar structure created by Maastricht o Now just 1 EU - Process was challenged before the national courts of Czech Republic and Germany o Many court cases to do with Democratic legitimacy. - Enlargement from 6 to 27 countries 1993 – First enlargement saw the EU coming in after 3 applications. UK quite involved in founding stage, decided not to join but then made 3 applications – the third was accepted. The Europe of Six At the time of its foundation, the Community comprised six countries: Germany, Belgium, France, Italy, Luxembourg and The Netherlands. The Europe of Nine In 1973, Denmark, United Kingdom and Ireland accede to the European Communities (EC). The Europe of Twelve During the eighties, the European Communities (EC) expanded to include Greece (1981), then Spain and Portugal (1986). The Europe of Fifteen In 1995, Austria, Finland and Sweden accede to the EC. The Europe of Twenty-Seven On 1 May 2004 the greatest enlargement in the history of the EU took place with the accession of 10 new countries: Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Czech Republic, Slovak Republic and Slovenia. In addition to considerably increasing the geographic area and the number of citizens of the Union, this

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fifth wave of enlargement illustrates the end of the division of Europe between East and West. On 1 January 2007, Romania and Bulgaria make their entry, thus completing this historic process. The Europe of Twenty-Eight On 1 July 2013 Croatia joined as a Member State of the EU Candidate countries – negotiations have begun for potential member states. They have been promised the prospect of joining. Need to fulfill the conditions first.

Future Enlargement Candidates: Iceland Turkey Serbia Montenegro Etc

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Conditions to Join the EU ARTICLE 49 TEU - Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. - The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

Article 6 (1) TEU - The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member states. Copenhagen Criteria (European Council 1993) - Stable institutions that guarantee democracy, the rule of law, human rights and respect for and protection of minorities; - A functioning market economy, as well as the ability to cope with the pressure of competition and the market forces at work inside the Union; - The ability to assume the obligations of membership, in particular adherence to the objectives of political, economic and monetary union. - The ability to put the EU rules and procedures into effect ( Madrid European Council 1995). Stages 1.Prospect of membership - formal offer 2.The country becomes an official candidate for membership 3.The candidate moves on to formal membership negotiations Negotiations – start - Council: unanimous decision - Establishment of a framework or mandate for negotiations with the candidate country - Negotiations under each chapter (policy field) are based on: o Screening: a detailed examination of each chapter is carried out by the Commission o Negotiation positions: position adopted by the candidate and common position adopted by the EU about the candidate country’s achievements Negotiations – conclusion - Every chapter under negotiation should be individually closed (EU Member States are unanimously satisfied with the progress shown by candidates). If each chapter of negotiation is not closed, another cannot begin. - Conclusion of an accession treaty: the document that contains terms and conditions od the accession. The accession treaty must be: - Supported by the Council, the Commission, and the European Parliament - Signed by the candidate country and by EU Member States - Ratified by the candidate country and by every individual EU Member State, according to their constitutional rules (parliamentary vote, referendum, etc.) The candidate becomes an acceding country.

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Western Balkans -

Special process: stabilisation and association process Aims: o stabilising the countries politically o Encouraging their transition to a market economy o promoting regional co-operation o eventual membership of the EU

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Tools: o o o o

trade concessions economic and financial assistance assistance for reconstruction, development and stabilisation stabilisation and association agreements

Recommended reading Dedman, M. (2009) The origins & development of the European Union 1945-2008. A history of European Integration. Oxon: Routledge. For next week: Chalmers D., Davies G., Monti G., European Union Law, second edition, chapters 2 and 3 on EU th institutions and law-making; or Craig, de Burca, EU Law, 5 edition, pp.31- 71 on institutions and 121- 156 Legislation and Decision-Making.

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The Legal Nature of the EU 1. International Law and the European Union Is the EU sui generis? Tendency to classify the EU as sui generis (something that is entirely unique and escapes comparison with other entities). Problematic: - Reflects a particular agenda or ‘concept’ of Europe as an autonomous legal and political project - Misleading as it masks the international law origins of the EU and its legal order - Makes understanding the nature of the EU more difficult as it suggests there is nothing we can compare it to - Misguided as it refuses to engage with international law and scholarship on its own terms. Must refer to international law in order to understand nature of EU. Bentham coined the term ‘international law’ to replace expression ‘law of nations’ in referring to the law governing mutual transactions between sovereign states. Classic international law International law applies between sovereign States in their mutual relations Classic system emerged during 16-18th century based on key concepts: - Territorial sovereignty o States are recognised as supreme political entities exercising authority over a geographical part of the world - Sovereign equality o All States are equal in their rights and duties – Independence o No Sovereign State is subject to the authority of another State Territorial Sovereignty is the essence of Statehood and the existence of a multitude of legally equal and independent States in the organising principle of the international legal order: Island of Palmas case (1928), 2 RIAA 829 (PCA) at 838 Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. International law applies between States and as such must be distinguished from the law applicable within each State (known as the domestic or internal law of each individual State). Evolution of international law Dramatic changes in international law: - Its Scope has extended to cover matters that no longer concern relations between States sstrictly speaking (e.g. human rights) - New actors have emerged (above all international organisations) meaning that States are no longer the only subjects of the international legal order - States have increasingly lost their legal and political freedom to manoeuvre

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Thus, whereas States are still the principal actors and subject of international law, they have lost their exclusive position and arguably their dominant position in international law. Implications for the study of the EU Three implications for the study of EU law: - The evolution of the EU as a corporate entity has taken place (and still does) against background of the changing nature of public international law - Development of international law is partly the story of the changing nature of the modern territorial State; the development of the EU is a story about the legal position of its Member States. – International law offers two paradigms for understanding the EU: Is the EU a State and is the EU an international organization

2. Is the European Union a State? What is a State? A State under public international law is not categorically defined. There is a set of reasonably well-established criteria used to define a State under The Montevideo Convention (1933) however this is open to difference in interpretation and application: Article 1, Montevideo Convention (1933): The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. Population - International law does not require a large number of inhabitants o E.g. Monaco; Nauru and Tuvalu o However exceedingly small entities e.g. Pitcairn (pop. of 45) are unlikely to achieve Statehood. Territory - States are territorial entities and exist in space; however, international law does not require that all the State’s boundaries are fully settled (e.g. Israel) - Nevertheless, an entity claiming to be a State must have at least some geographical presence o E.g. Palestine before 1994. North Sea Continental Shelf Cases (1969) ICJ Rep. 3, at 132: There is for instance no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations. Government - International law requires that an entity claiming to be a State exercises effective authority over its territory and population, but beyond this it does not impose any fixed requirements regarding the structure or nature of government o E.g. no requirement that government must be democratic. - There is no specific size of a state regarding population or geographical area. There only needs to have an effective government – the type does not matter. Independence - An entity claiming to be a State must not be dependent on any other State but enjoy a degree of actual and formal independence enabling it to act on the international level on its own.

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Separate Opinion of Judge Anzillotti, Customs Regime between Germany and Austria, PCIJ Ser A/B, No 41 (1931), at 57: “The independence of Austria within the meaning of Article 88 is nothing else but the existence of Austria ... as a separate State and not subject to the authority of any other State or group of States. Independence as thus understood is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law “ Does the EU Satisfy these criteria?  Population: o Does EU citizenship equate to a population? Can argue no as EU citizenship is secondary to the citizenship of a member state. o See judgement on Lisbon case for Germany below. But overall, EU does not have a population. Lisbon Case, BVerfG, 2 BvE 2/08, Judgment of 30 June 2009 (German Federal Constitutional Court) After the ratification of the Treaty of Lisbon, the Federal Republic of Germany will continue to have a state people. The concept of the "citizen of the Union", which has been more strongly elaborated in Union law, is exclusively founded on Treaty law. The citizenship of the Union is solely derived from the will of the Member States and does not constitute a people of the Union, which would be competent to exercise self-determination as a legal entity giving itself a constitution. [347] In particular, the introduction of the citizenship of the Union does not permit the conclusion that a federal system has been founded. Historical comparisons, for instance with the German foundation of a federal state via the North German Confederation of 1867 ... do not help very much in this context. After the realisation of the principle of the sovereignty of the people in Europe, only the peoples of the Member States can dispose of their respective constituent powers and of the sovereignty of the state. Without the expressly declared will of the peoples, the elected bodies are not competent to create a new subject of legitimisation, or to delegitimise the existing ones, in the constitutional areas of their states. [348] In this sense, the citizenship of the Union is nothing which culturally or normatively precedes the current treaty law and from which legal effects that shape the constitution could emerge. The citizenship of the Union, which has been incorporated into primary law by past treaty amendments, is a derived status which shall be additional to national citizenship (Article 17.1 sentences 2 and 3 ECT; Article 9 sentence 3 TEU Lisbon). This status is also not altered by the rights connected with the citizenship of the Union even though the Treaty of Lisbon extends these rights. The citizens of the Union are granted a right to participate in the democratic life of the Union (Article 10.3, Article 11.1 TEU Lisbon), which emphasises a necessary structural connection between the civic polity and public authority. Additionally, the exercise of existing rights of the citizens of the Union in the area of protection by the diplomatic or consular authorities and of the documents of legitimization is facilitated (see Article 23.2, Artcile 77.3 TFEU) 

Territory o Any territory ‘given’ to the EU is not owned by law. Title over the territory remains with the neighbour states. The EU holds the authority to extend its influence over such land, however, it does not own it. Ergo, no territory.

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Government o Is a structure. Has to be effective. Such structures do exercise effective powers, but international law relates to more exclusive government. The EU does not fit this as it does not hold complete sovereignty over member states. Looks like its ‘government’ does not fit the necessary criteria. o The institutions of the EU clearly exercise an effective form of governance on the European level, yet the authority is limited both in its scope and its nature.

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Independence

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There are limits to its powers, which it shares with its member states. Also, the EU does not hold all the capabilities expected by a state. It is dependent on the member states to function. The EU enjoys formal independence of action in a number of key areas, but not in others; moreover, it is factually dependent on the support of its Member States in taking action at the international level.

Refer to Lisbon Case BVerfG Judgment of 30 June 2009. 3. Is the European Union an International Organisation? What is an international organisation? There is no authoritative, legally binding definition. They must be distinguished from their Member States on the one hand and from other organisations which are not public or truly international in nature on the other hand. Five features are commonly used to this end: - Created by international agreement rather than domestic legal instruments: o means they are usually created by states to act on an international level. o Distinguishes intergovernmental organisations from NGOs - At least one autonomous organ o Distinguishes them from being a sub-department of the state. o Must have some power to act independently and means that an international organisation is not simply a collective organ of its member states. – Public international law must regulate its activities directly o An international organisation acts directly on the international level – Prescribed field of activity – o Defined in terms of function rather than territory. o The state holds sovereignty (can do what it wants) However, international organisations should uphold the duties they were created for. – Legal personality – o Must enjoy legal personality under public international law o Allows them to function with law – creating and interpreting law to move forwards. Applying the criteria to the EU - Created by international agreement – Yes o The EU was created through international agreement – it relies on this agreement to exist and function. - At least one autonomous organ – Yes (many) o All institutions of the EU are capable of acting independently from the Member States individually, including the European Council, the Council, the Commission, the European Parliament and the Court of Justice. - Directly governed by international law - Yes o The ECJ has accepted on several occasions that the EU must comply with applicable rules of international law. Case C-308/06, Intertanko [2008] ECR I-4057 51. Admittedly, as is clear from settled case-law, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law (see, to this effect, Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraphs 9 and 10; Case C-405/92 Mondiet [1993] ECR I6133, paragraphs 13 to 15; and Case C-162/96 Racke [1998] ECR I3655, paragraph 45). -

Prescribed field of activity - Yes

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The treaties lay down certain objectives for the EU (Article 3 TEU) and also define what competences it enjoys in order to carry out those objectives (Article 5 TEU). International legal personality – Yes o The Lisbon Treaty now confirms in express terms that the EU enjoys legal personality (Article 47 of the Treaty of the European Union)  does not state whether this is domestic or international. But, is largely accepted that the EU has power to act in both. o

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The EU fits all the criteria and is therefore an international organisation. 4. Constitutional Perspectives However, some would argue that the EU is unlike other international organisations because it has special features which make it very different; these features include: - The wide scope of functions; - The nature of its competences - The relationship between EU law and domestic law Two responses to this situation are possible: a) The EU should simply be regarded as the most advances international organisation in existence today b) The EU is more than just an international organisation and it is no longer appropriate or accurate to describe it as one. Rather – the EU is something ‘in-between’ an international organisation and a State, combining features of both paradigms. Alternative concepts to the classification of the EU: – Supranationalism – The legal order of the EU is above Member States; that EU law is superior to the states and is therefore different (overarching) o Criticism is that it defines the Union in negative terms – Compound democracy (Fabbrini) – o The idea that the EU is a compound consisting of the Member States and EU institutions and that decision-makers in the EU are elected either directly or indirectly through democratic processes, with decision-making power being diffused among a plurality of actors within a multiplicity of institutions. – Multilevel Governance (Pernice) o Describes EU as a multilevel constitutional structure of a new kind, based upon functioning democratic Member States, complementary to the, and binding tem together in a supranational unit without itself being a State or aiming at statehood. Others have described the EU as a Federalist Entity; prominently, Robert Schutze has described the EU as a “federation of States” by relying on the American constitutional tradition. The American federalist tradition The American federal tradition suggests that the 1787 Constitution created the United States of America as an entity ‘in between’ an international and a national structure: - The legal order of the US was international in origin - The legislature of the US represented both individuals and the constituent states - The powers exercised by the central government were both national (applicable to individuals) as well as international (applicable to the constituent States). The American federal tradition thus implied dual government, dual sovereignty and also dual citizenship.

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Applying the criteria to the EU Schütze relies on federalism and argues the same analysis applies to the EU: - The EU was conceived as an international organisation founded bu an international agreement, but since then its founding treaties have evolved into a ‘Treaty-Constitution’ - The Union’s principal law-making organs represent the European people (European Parliament) and the Member States (council); - There is a division of powers in Europe between the EU and the Member States along federal lines. Schütze therefore concludes that the EU is best characterised as a federation of States.

Criticism of the federalist view However the federalist thesis may be questioned from three angles: - Accuracy: o The federalist argument does not fit all institutions of the EU. Moreover, the extent to which the founding treaties have turned into constitutional documents may be questioned. - Comparison with the USA o Schutze’s reliance on the American federal tradition may be of mostly historical interest with limited contemporary relevance. o He seems to be making a sui generis argument to the extent that the EU is the only ‘federation of States’ currently in existence. o Internal and external view; the US is a federation of States from the inside but ap-pears as a federal State from the outside – could the EU be described as a federation of States from the internal perspective but then seen as an international organisation from the outside? - Constitutional perspective o Schütze refers to international law merely from the point of view of the American and European constitutional traditions but overlooks that international law is a separate legal system which is capable of providing its own perspective of the EU. Conclusion No one knows what the EU should be defined as. The EU is still in a state of progression and flux. Consequently, whatever the EU is labelled as now would appear to reflect more upon the view of what it is to become, than its current state. Basic Reading Shaw, International Law (6th, 2008), Ch 5 (‘The Subjects of International Law’) [available at https://www.dawsonera.com/readonline/9780511574429/startPage/363]. Grimm, ‘Defending Sovereign Statehood Against Transforming the Union Into a State’ (2009) 5 European Constitutional Law Review 353. Recommended Reading Bieber, ‘An Association of Sovereign States’ (2009) 5 European Constitutional Law Review 391. Lock, ‘Why the European Union is not a State: Some Critical Remarks’ (2009) 5 European Constitutional Law Review 407. Schütze, ‘On “Federal” Ground: The European Union as an (Inter)national Phenomenon’ (2009) 46 Common Market Law Review 1069. Everling, ‘The European Union as a Federal Association of States and Citizens’ in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 701. Kirchhof, ‘The European Union of States in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 735. Further Reading Pernice, ‘The Treaty of Lisbon: Multilevel Constitutionalism in Action’ (2008-2009) 15 Columbia Journal of

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European Law 349. Fabbrini, ‘Contesting the Lisbon Treaty: Structure and Implications of the Constitutional Divisions Within the European Union’ (2010) 10 European Journal of Law Reform 457. Mancini, ‘Europe: The Case for Statehood’ (1998) 4 European Law Journal 29. Weiler, ‘Europe: The Case Against the Case for Statehood’ (1998) 4 European Law Journal 43. Curtin and Dekker, ‘The European Union from Maastricht to Lisbon: Institutional and Legal Unity out of the Shadows’, in Craig and de Búrca (eds) The Evolution of EU law (2nd, 2011) 155. Akande, ‘International Organizations’ in Evans (ed) International Law (3rd, 2010) 252. Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (2009).

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The Competences of the EU (1) Terminology It is necessary to distinguish between a number of related but nonetheless separate concepts relevant to the present lecture. Legal personality: - Entities regarded as carriers of rights and duties and legal capacities within a particular legal system Legal capacity: - Denotes the authority or power enjoyed by legal persons to perform legally valid and meaningful acts within the legal system they inhabit (eg conclude contracts, incur liability) States: - Are the original and principal subjects of international law; their legal personality and capacities derive from the very structure of the international legal order as a system of rules based on State sovereignty Sovereignty: - In a legal sense refers to the rights and capacities that are inherent in Statehood International organizations: - Are secondary subjects of international law created (mostly) by States; o they enjoy legal personality only if their member States endowed them with legal personality either in express terms or by implication Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion (1949) ICJ Rep. 174, at 179: the organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Article 47 TEU confers legal personality on the EU in express terms; in the past, it was unclear whether the EU (as opposed to the EC) enjoyed legal personality at all (see Sari) International organizations only enjoy those legal capacities, often referred to as competences, which their Member States have conferred upon them, either expressly or by implication, in order to carry out their functions. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion (1949) ICJ Rep. 174, at 182–184: Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication. as being essential to the performance of its duties. [...] Having regard to the foregoing considerations, and to the undeniable right of the Organization to demand that its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organization, the Court is of the opinion that, in the case of a breach of these obligations, the Organization has the capacity to claim adequate reparation, and that in assessing this reparation it is authorized to include the damage suffered by the victim or by persons entitled through him.

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Competence: - Refers to the capacities conferred upon an international organization by its member States (the corporate level) or the capacities enjoyed by the organs or institutions of an international organization (the internal division of powers); - competence is another word for legal capacity Dr Aurel Sari 2013-14 / T1:02 / Competences 2/8

(2) Competence and European integration The Member States have transferred a broad range of competences onto the EC and EU during the course of European integration, thereby limiting the exercise of their own capacities This process has been contentious: a) Member States are concerned about a shift of power to the EU and the creeping expansion of its competences in practice b) European public opinion is concerned about a lack of oversight and control of ‘Europe’ c) The institutions are ambivalent as they benefit from expanding EU competences but fear a backlash Matters are complicated by the fact that two separate questions have to be asked about EU competence: 1. Does the EU enjoy competence in a particular area? a. The Member States may empower the EU to act either in express terms or by necessary implication; implied powers doctrine was accepted by the ECJ in Case 8/55, Federation Charbonniere de Belgique v. High Authority [1956] ECR 245; b. implied powers played a particularly significant role in EC external relations Case 22/70, Commission v Council (ERTA) [1971] ECR 263 15 To determine in a particular case the Community's authority to enter into international agreements, regard must be had to the whole scheme of the Treaty no less than to its substantive provisions. 16 Such authority arises not only from an express conferment by the Treaty ... but may equally flow from other provisions of the Treaty and from measures adopted, within theframework of those provisions, by the Community institutions. 17 In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules. 18 As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system. 19 With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations. 28 Although it is true that Articles 74 and 75 do not expressly confer on the Community authority to enter into international agreements, nevertheless the bringing into force, on 25 March 1969, of Regulation no 543/69 of the Council on the harmonization of certain social legislation relating to road transport (OJ L 77, p. 49) necessarily vested in the Community power to enter into any agreements with third countries relating to the subject-matter governed by that Regulation. 2.

If the EU does enjoy competence, a second question must be asked: what is the nature or type of this competence?

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States may confer legal capacities onto international organizations in two main ways: a. They may confer powers onto the organization whilst at the same time retaining the right to exercise the same powers themselves (delegation of power: i. the organization enjoys non-exclusive powers) b. They may confer certain powers onto an international organization whilst at the same time agreeing not to exercise their own powers in that area (transfer of powers: the organization enjoys exclusive powers) One of the special features of the EU is that the ECJ declared many of its competences to be of an exclusive nature, often justifying this conclusion by relying on the principle of effectiveness i. Case 22/70, Commission v Council (ERTA) [1971] ECR 263 30 Since the subject-matter of the ERTA falls within the scope of Regulation no 543/69, the Community has been empowered to negotiate and conclude the agreement in question since the entry into force of the said Regulation. 31 These Community powers exclude the possibility of concurrent powers on the part of Member States, since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the common market and the uniform application of Community law. The more precise delimitation of the respective competences of the EU and the Member States was one of the fundamental aims of the reform process launched in 2000; the Lisbon Treaty attempts a more precise delimitation by: - Underlining the principle of conferral; - Codifying the division of competences between the Union and the Member States in express terms (Article 2 TFEU); - Recognizing that the competences of the EU may be reduced (Article 48(2) Dr Aurel Sari 2013-14 / T1:02 / Competences 3/8 TEU); - Recognising that Member States may regain the right to exercise their competence in areas of shared competence under certain circumstances; (e) limiting the use of the flexibility clause under Article 352 TFEU

3. The Scope of EU Competences States confer competences onto international organizations so that the latter can discharge their functions; The competences of international organizations, including those of the EU, are therefore limited by their objectives and functions: - The EU’s objectives have evolved over time and are very broad Article 3 TEU 1. The Union’s aim is to promote peace, its values and the well-being of its peoples 2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. 4. The Union shall establish an economic and monetary union whose currency is the euro.

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5.

In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

In response to the growing scope of the EU’s objectives and the concern over ‘competence creep’, the Lisbon Treaty now strongly underlines the principle of conferral as the basis for the EU’s powers Article 5 TEU (1)aUnder the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. The notion that the EU’s competences derive from the Member States is emphasized in the Preamble of the TEU By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common. The corresponding notion that powers not conferred upon the EU remain with the Member States is confirmed in Article 4 TEU, which also sets substantive limits to the EU’s authority. Article 4 TEU 1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local selfgovernment. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State. To further clarify the division of powers between the EU and the Member States, Article 2 TFEU identifies three types of EU competence: A. Exclusive: only the Union is empowered to act in the area covered by exclusive competence Article 3 TFEU 4. The Union shall have exclusive competence in the following areas: a. Customs union; b. The establishing of the competition rules necessary for the functioning of the internal market; c. Monetary policy for the Member States whose currency is the euro; (d) the conservation of marine biological resources under the common fisheries policy; (e) common commercial policy. 4. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope. B. Shared competence: both the EU and the Member States may act when the field is not covered by existing EU legislation; when the EU has acted and covered a particular field, the Member States are prevented from exercising their powers Article 4 TFEU 2. Shared competence between the Union and the Member States applies in the following principal areas: a.

Internal market;

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b. c. d. e. f. g. h.

4. 4.

Social policy, for the aspects defined in this Treaty; Economic, social and territorial cohesion; Agriculture and fisheries, excluding the conservation of marine biological resources; Environment; Consumer protection; Transport; Trans-European networks; i. Energy; ii. Area of freedom, security and justice; iii. Common safety concerns in public health matters, for the aspects defined in this Treaty. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

C. Supporting, coordinating or supplementing competence: the EU may act to support, coordinate and supplement actions of the Member States, but may not enact harmonizing legislation In the past, the predecessor of Article 352 TFEU [ex Article 235 EC, later ex Article 308 EC] enabled the Council, acting unanimously and on a proposal from the Commission and after consulting the European Parliament, to take measures it considered necessary in order to attain the objectives of the Treaties in a situation where the Community had no explicit or implied powers to act – this was known as the flexibility clause Article 352 TFEU was used extensively; this was challenged before the ECJ in successive cases; in Case 45/86, Commission v. Council (General Tariff Preferences) [1987] ECR 1493, the Court underlined that a measure could only be adopted under Article 308 EC if there was no other appropriate provision in the EC Treaty which would provide a legal basis for Community action; Opinion 2/94, Re the Accession of the Community to the European Convention on Human Rights [1996] ECR I-1759 [27] No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field. [28] In the absence of express or implied powers for this purpose, it is necessary to consider whether Article 235 of the Treaty may constitute a legal basis for accession. [29] Article 235 is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty. [30] That provision, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community. On any view, Article 235 cannot be used as a basis for the adoption of provisions whose effect would, in Dr Aurel Sari 2013-14 / T1:02 / Competences 5/8 substance, be to amend the Treaty without following the procedure which it provides for that purpose. The Lisbon Treaty reduces the scope of Article 352 TFEU by, amongst other things, limiting it to the objectives listed in Article 3 TEU (except the Common Foreign and Security Policy), requiring the European Parliament’s consent and excluding harmonization measures

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4. The Principle of Subsidiarity and Proportionality The Treaty of Lisbon further seeks to clarify the delimitation of competences between the Union and the Member States by strengthening the principle of subsidiarity and proportionality Article 5 TEU 3. Under the principle of subsidiarity, in areas which do not 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 effects 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 principle of subsidiarity in accordance with the procedure set out in that Protocol. Subsidiary thus imposes several requirements on EU action: sufficiency (action at EU level must be necessary), benefit (action must bring added value); closeness to the citizen The principle of subsidiarity applies to all institutions of the EU, including the European Commission, European Parliament and the Council, within their spheres of activity The principle of subsidiarity has been invoked before the ECJ on a number of occasions, but the Court has not adopted a strict standard of review Case C-84/94 United Kingdom v Council 46. The applicant further maintains that the Community legislature neither fully considered nor adequately demonstrated whether there were transnational aspects which could not be satisfactorily regulated by national measures, whether such measures would conflict with the requirements of the EC Treaty or significantly damage the interests of Member States or, finally, whether action at Community level would provide clear benefits compared with action at national level. In its submission, Article 118a should be interpreted in the light of the principle of subsidiarity ... 47 In that respect, it should be noted that it is the responsibility of the Council, under Article 118a, to adopt minimum requirements so as to contribute, through harmonization, toachieving the objective of raising the level of health and safety protection of workers which, in terms of Article 118a(1), is primarily the responsibility of the Member States. Once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonize the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Community-wide action, which otherwise, as in this case, leaves the enactment of the detailed implementing provisions required largely to the Member States. ... 57 As regards the principle of proportionality, the Court has held that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 42). 58 As to judicial review of those conditions, however, the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion. 59 So far as concerns the first condition, it is sufficient that, as follows from paragraphs 36 to 39 of this judgment, the measures on the organization of working time which form the subject-matter of the directive, save for that contained in the second sentence of Article 5, contribute directly to the improvement of health and safety protection for workers within the meaning of Article 118a, and cannot therefore be regarded as unsuited to the purpose of achieving the objective pursued.

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60 The second condition is also fulfilled. Contrary to the view taken by the applicant, the Council did not commit any manifest error in concluding that the contested measures were necessary to achieve the objective of protecting the health and safety of workers. Protocol 2 to the Lisbon Treaty on the Application of the Principles of Subsidiarity and Proportionality introduces new procedures which gives national parliaments the opportunity to monitor the proper application of the principle of subsidiarity The Lisbon Treaty also highlight the role of the principle of proportionality as a limit to the EU’s competences Article 5 TEU 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality The ECJ has been somewhat stricter in applying the principle of proportionality Case C-310/04 Spain v Council [2006] ECR I-7285 96 The Community legislature has a wide discretion where the common agricultural policy is concerned ... Consequently, judicial review by the Community Court must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (Case C ‑ 189/01 Jippes and Others [2001] ECR I‑ 5689, paragraph 80 and the case-law cited). 97 As to review of proportionality, it should be recalled that the principle of proportionality, which is one of the general principles of Community law, requires that acts adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Jippes, paragraph 81 and the case-law cited). 98 As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by the Community legislature where the common agricultural policy is concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (Jippes, paragraph 82 and the case-law cited). 122 However, even though such judicial review is of limited scope, it requires that the Community institutions which have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. 123 It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended. 133 In those circumstances, the conclusion must be that the Council, the author of Regulation No 864/2004, has not shown before the Court that in adopting the new cotton support scheme established by that regulation it actually exercised its discretion, involving the taking into consideration of all the relevant factors and circumstances of the case, including all the labour costs linked to cotton growing and the viability of the ginning undertakings, which it was necessary to take into account for assessing the profitability of that crop.

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5. The Position of the Member States The wide scope and nature of the EU’s competences raises questions about the legal position of the Member States and whether they continue to enjoy sovereignty Sovereignty and Light Switches Sovereignty is a controversial concept that has different meanings in different fields: - In political philosophy, it expresses idea of the absolute authority of the ruler or State - In international law, it refers to the rights and legal capacities inherent in Statehood There are two main views as to whether or not sovereignty can be divided and delegated: - The first view suggests that sovereignty is like a flicker switch: o It is either on or off and there is no middle position; - The second view suggests that sovereignty is in fact divisible: it is more like a dimmer switch in the sense that it can be turned on and off in stages International law takes the second view and accepts that States may delegate or transfer their sovereign rights to other entities Nevertheless, as with any dimmer switch, at a certain point the light is in fact switched off completely: similarly, is there a point at which a very extensive transfer or externalization of sovereign rights by a State leads to a loss of overall sovereignty? - Some suggest that the answer is yes and that the Member States have in fact lost some of their sovereignty to the EU in this way and have consequently become ‘strange subjects’ of international law (de Witte) - However, the various limits imposed on the EU’s competences by the Lisbon Treaty may be understood as a counter-reaction to this view and as a step by the Member States to reassert their sovereign status; this is the view taken by the German Federal Constitutional Court Lisbon Case, BVerfG, 2 BvE 2/08, Judgment of 30 June 2009 (German Federal constitutional Court) [231] The empowerment to transfer sovereign powers to the European Union or other intergovernmental institution permits a shift of political rule to international organisations. The empowerment to exercise supranational competences comes, however, from the Member States of such an institution. They therefore permanently remain the masters of the Treaties. In a functional sense, the source of Community authority, and of the European constitution that constitutes it, are the peoples of Europe with their democratic constitutions in their states. The "Constitution of Europe", the law of international agreements or primary law, remains a derived fundamental order. It establishes a supranational autonomy which is quite far-reaching in political everyday life but is always limited factually. Here, autonomy can only be understood ... as an autonomy to rule which is independent but derived, i.e. is accorded by other legal entities. In contrast, sovereignty under international law and public law requires independence of an alien will particularly for its constitutional foundations... It is not decisive here whether an international organisation has legal personality, i.e. whether it for its part can bindingly act as a subject in legal relations under international law. What is decisive is how the fundamental legal relation between the international organisation and the Member States and Contracting States which have created the organisation and have vested it with legal personality is elaborated. [233] The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (KompetenzKompetenz) ... Also a far-reaching process of independence of political rule for the European Union brought about by granting it steadily increased competences and by gradually overcoming existing

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unanimity requirements or rules of state equality that have been decisive so far can, from the perspective of German constitutional law, only take place as a result of the freedom of action of the selfdetermined people. According to the constitution, such steps of integration must be factually limited by the act of transfer and must, in principle, be revocable. For this reason, withdrawal from the European union of integration (Integrationsverband) may, regardless of a commitment for an unlimited period under an agreement, not be prevented by other Member States or the autonomous authority of the Union. This is not a secession from a state union (Staatsverband), which is problematical under international law ..., but merely the withdrawal from a Staatenverbund which is founded on the principle of the reversible selfcommitment. [234] The principle of conferral is therefore not only a principle of European law (Article 5.1 ECT; Article 5.1 sentence 1 and 5.2 TEU Lisbon...); just like the European Union's obligation to respect the Member States' national identity (Article 6.3 TEU; Article 4.2 sentence 1 TEU Lisbon), it takes up constitutional principles from the Member States. In this respect, the principle of conferral under European law and the duty, under European law, to respect identity, are the expression of the foundation of Union authority in the constitutional law of the Member States. [249] European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient space for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens' circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. Essential areas of democratic formative action comprise, inter alia, citizenship, the civil and the military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realisation of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, of the press and of association and the dealing with the profession of faith or ideology.

Questions What do the terms legal person, legal capacity and competence mean? Why do States have sovereignty while international organizations do not? Why has the transfer of competences onto the EU been a controversial subject? What do we mean by exclusive and non-exclusive competences? How does the Lisbon Treaty attempt to delimit the Union’s and the Member States’ competences? What types of competence does the EU possess? What is the role of Article 352 TFEU? What is the principle of conferral? What is the principle of subsidiarity and proportionality? Are the Member States of the EU still sovereign States? Basic Reading

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 

Craig and de Búrca, EU Law (5th edn, 2011), Ch 3 (‘Competence’). Editorial, ‘From Confederacy to Convoy: Thoughts about the Finality of the Union and its Member States’ (2010) 6 European Constitutional Law Review 1.

Recommended Reading  Tridimas, ‘Competence after Lisbon: The Elusive Search for Bright Lines’ in Ashiagbor, Countouris and Lianos (eds) The European Union after the Treaty of Lisbon (2012) 47.  Kaczorowska, European Union Law (3rd, 2013) Ch 6 (‘Competences of the EU’) 163 [2nd edn available at https://www.dawsonera.com/readonline/9780203837368/startPage/349]  de Witte, ‘The Emergence of a European System of Public International Law: The EU and its Member States as Strange Subjects’, in Wouters et al. (eds), The Europeanisation of International Law: The Status of International Law in the EU and its Member States (2008) 39.  Craig, ‘Competence: Clarity, Conferral, Containment and Consideration’ (2004) 29 European LawReview 323. Further Reading  Von Bogdandy and Bast, ‘The Federal Order of Competences’ in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 275.  Klabbers, International Institutional Law (2nd, 2012) Ch 3 ('The Legal Position of International Organizations') and Ch 4 ('The Foundation of the Powers of Organizations').  Weatherill, ‘Competence Creep and Competence Control’ (2004) 23 Yearbook of European Law 1.  von Bogdandy and Bast, ‘The European Union's Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 Common Market Law Review 227.  Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (2010) Ch 5 (‘Competence, Categories and Control’).  Papasthanasiou, ‘The European Union’s Identity as a Subject of the International Legal Order: Evolutions under the Treaty of Lisbon’ (2008) 5 Cambridge Student Law Review 22.  Sari, ‘The Conclusion of International Agreements by the European Union in the Context of the ESDP’ (2008) 57 International and Comparative Law Quarterly 53

The Institutions of the EU (I)

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Topic and purpose of this lecture - The purpose of this lecture is to review the institutional framework of the European Union, focusing on certain common questions affecting all institutions of the Union and looking in greater detail at the European Council and the Council.

1. International Organizations and their Organs -

Like States, international organizations carry out their functions through organs specializing in certain specific task Typically, international organizations will have at least three main organs a. a plenary body where the representatives of all members States meet at regular intervals; plenary bodies usually serve as a forum for consultation and deliberation and sometimes may also have decision-making competences b. an executive body which meets and may take decisions on shorter notice; in the case of larger organizations, not all Member States will be represented in these bodies; they are often granted the power to make binding decisions c. an administrative body or secretariat composed of international civil servants working for the interests of the organization as a whole; d. some organizations are also endowed with judicial bodies; these may be created to solve disputes between Member States or disputes between the organization and its staff; sometimes, these two functions are combined

2. The institutions of the EU -

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The term ‘institutions’ has a specific meaning within the treaties: it refers to the seven main organs of the EU listed in Article 13(1) TEU: the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank; the Court of Auditors The institutional framework of the EU as well as the functions of the individual institutions has evolved considerably over time Initially, the constitutive Treaties (ECSC, EEC and EAEC) envisaged that the three European Communities would be served by separate institutions. o However, Convention on Certain Institutions Common to the European Communities (1957) provided for a single Assembly (the European Parliament) and Court (the ECJ) while subsequently the Merger Treaty (1967) established a single ‘Council of the European Communities’ and a single ‘Commission of the European Communities’ The Treaty on European Union (1992) launched the EU as an entity distinct from the existing Communities, but linked them together by a single institutional framework [ex Article C TEU, later ex Article 13 TEU]; o The institutions were given different powers and played different functions under the different organizational and legal frameworks: this is what was expressed by the idea of the pillar structure The Lisbon Treaty rolled the different organizations and legal frameworks into one and creates institutional and legal unity, with the EU and EU law replacing the European Community and Community law o (note that the EAEC continues to exist, but the ECSC Treaty expired); o however, special procedures and competences still apply in the field of Common Foreign and Security Policy (CFSP) and to this extent the pillar structure has not been completely abandoned A number of points are worth bearing in mind about the respective functions of the institutions of the EU

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and the division of power between them a. The functions of the institutions cannot be divided neatly along the same lines as the traditional notions of governmental functions: legislative, executive, administrative and judicial; many of these duties are shared between institutions b. There is no formal hierarchy between the different institutions (except in case of the European Council and the Council): their functions are for the most part complementary; this idea is expressed in the notion of ‘institutional balance’ Article 13 TEU 2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation. -

One of the tasks of the Court of Justice is to ensure that the balance of powers laid down by the Treaties is maintained Case 9-56, Meroni [1957–1958] ECR 133, at 151–152 The applicant complains that the High Authority has, by its Decision no 14/55, delegated to the Brussels agencies powers which they are ill-qualified to exercise. [...] However, in the light of Article 53, such delegations of powers are only legitimate if the High Authority recognizes them ' to be necessary for the performance of the tasks set out in Article 3 and compatible with this Treaty, and in particular with Article 65.' Article 3 lays down no fewer than eight distinct, very general objectives, and it is not certain that they can all be simultaneously pursued in their entirety in all circumstances. The objectives set out in Article 3 are binding not only on the High Authority, but on the ' institutions of the Community... Within the limits of their respective powers, in the common interest '. From that provision there can be seen in the balance of powers which is characteristic of the institutional structure of the Community a fundamental guarantee granted by the Treaty in particular to the undertakings and associations of undertakings to which it applies. To delegate a discretionary power, by entrusting it to bodies other than those which the Treaty has established to effect and supervise the exercise of such power each within the limits of its own authority, would render that guarantee ineffective. C-70/88, Parliament v. Council (Chernobyl) [1990] ECR I-2041 21 The Treaties set up a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community. 22 Observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. It also requires that it should be possible to penalize any breach of that rule which may occur. 23 Court, which under the Treaties has the task of ensuring that in the interpretation and application of the Treaties the law is observed, must therefore be able to maintain the institutional balance and, consequently, review the observance of the Parliament' s prerogatives when called upon to do so by the Parliament, by means of a legal remedy which is suited to the purpose which the Parliament seeks to achieve.

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The powers of the institutions have evolved over time both as a result of successive treaty changes as well as in response to political developments It is possible to see some of institutions representing various interests: the Commission as supranational and integrationist, the Council as intergovernmental and incorporating the individual state interests; however, care should be taken not to overstate this The institutions share a number of common features:

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a. b. c.

Under Article 341 TFEU, the seat of the institutions should be determined by common accord of the Member States; in practice, the determination of the permanent seats of the EU institutions has always been subject to fierce competition among the Member States Regulation 1/1958 as amended provides that the national languages of the Member States are official languages of the EU, all equal in rank and status; currently, there are 24 official languages Protocol 7 on the Privileges and Immunities of the European Union provides the officials and other servants of the EU with certain privileges and immunities to ensure that they are able to carry out their duties effectively

3. European Council The European Council represents the Member States at the highest level; it is the top decision-making body in the Union; it is heads of state or government of the Member States, together with the President of the European Council and the President of the Commission The European Council originates from informal summit meetings of heads of governments of the Member States and ministers of foreign affairs started in 1972; - Article 2 of SEA brought the European Council within the framework of the Community; it became a fullyfledge institution under the Treaty of Lisbon The European Council as an institution of the EU should not be confused with a. The Council of Europe, which is a separate international organization or b. The Council of the European Union, which is a separate institution of the EU The European Council exercises supreme political authority in the EU by a. Providing political direction (platform for discussions, settlement of disputes, initiation of policies) and b. Taking politically sensitive decisions: (revision of the Treaties; appointment of key officials; determination of a serious and persistent breach by a Member State of the European Union's founding values under Article 7(2) TEU; accessions to the EU) The European Council meets twice every six months although it can also meet in extraordinary sessions; all meetings are convened by its President Following the Lisbon Treaty, the European Council now elects a President, by qualified majority, for two-and-ahalf years (operates in parallel to the President of the European Commission)

Article 15 TEU 1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions. 2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work. 3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council. 4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.

4. The Council of the European Union

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The Council consists of representatives of the Member States, one from each Member State, who must be ‘at ministerial level, authorised to commit the government of that Member State’ -

Some commentators suggest that there is a tension between the demands of a minister’s role as a national politician and his or her obligations as a member of Council under the Treaties: this misunderstands the role of the Council as an institution designed to feed national positions into the decision-making process

Council meetings are arranged by subject matter into different Council ‘formations’. These include the a. General Affairs Council i. (Deals with matters that affect more than one EU policy and prepares agenda for the European Council); b. Foreign Affairs Council (normally attended by foreign ministers; c. Economics and Finance Council (deals with the budget, Economic and Monetary Union, and financial markets); d. Justice and Home Affairs; e. other sectoral formations (Transport, Telecommunications and Energy; Employment, Social Policy, Health and Consumer Affairs; Agriculture and Fisheries; Competitiveness; Environment) -

The Foreign Affairs Council is chaired by the High Representative of the Union for Foreign Affairs; other Council formations are chaired by a ‘team’ presidency system the Council exercises a critical role in the decision-making process: a. It votes on virtually all Commission legislative initiatives before they become law; b. May initiate the legislative process through Article 241 TFEU; c. Can delegate power to the Commission; d. Plays a major role in relation to the EU’s budget; e. Concludes agreements on behalf of the EU with third states or international organizations; f. Is the main decision-making and implementing body in the Common Foreign and Security Policy

Decisions are taken by simple majority, unanimity or – in most cases – qualified majority voting (QMV); - QMV system is based on population size and the number of Member States voting Much of the Council’s day-to-day work is carried out by the Committee of Permanent Representatives (COREPER) (Article 240(1) TFEU) responsible for preparing the work of the Council; - COREPER is assisted by around 150 working groups and the General Secretariat Article 16 1. 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. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote. 3. The Council shall act by a qualified majority except where the Treaties provide otherwise. [...] 6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 236 of the Treaty on the Functioning of the European Union. The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission. The Foreign Affairs Council shall elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent. 7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council. 8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations

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on Union legislative acts and non-legislative activities. 9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established in accordance with Article 236 of the Treaty on the Functioning of the European Union.

Questions Why do international organizations have organs? What kind of functions do they carry out? What are the institutions of the EU? What does the term ‘institutional balance’ refer to? What role has the ECJ played in maintain the balance between the institutions of the EU? What is the role of the European Council? In what sense does it act as the supreme political authority within the EU? What is the role of the Council? Why do different Council formations exist? What are the advantages and disadvantages of qualified majority voting?

Basic Reading Craig and de Búrca, EU Law (5th edn, 2011), Ch 2 (‘The Institutions’). Recommended Reading Pech, ‘The Institutional Development of the EU post-Lisbon: A case of plus ça change...?’, in Ashiagbor, Countouris and Lianos (eds) The European Union after the Treaty of Lisbon (2012) 7. Christiansen, ‘The European Union after the Lisbon Treaty: An Elusive “Institutional Balance”?’, in Biondi, Eeckhout, and Ripley (eds) EU Law after Lisbon (2012) 228. Jacque, ‘The Principle of Institutional Balance’ (2004) 41 Common Market Law Review 383. Dann, ‘The Political Institutions’, in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 237. Further Reading Craig, ‘Institutions, Power and Institutional Balance’ in Craig and de Búrca (eds), The Evolution of EU Law (2nd edn, 2011) 42. Devuyst, ‘The European Union’s Institutional Balance after the Treaty of Lisbon: “Community Method” and “Democratic Deficit” Reassessed’ (2008) 39 Georgetown Journal of International Law 247. Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (2010) Ch 3 (‘Executive Power, Contestation, and Resolution’). Dashwood and Johnston, ‘The Institutions of the Enlarged EU under the Regime of the Consitutionsl Treaty’ (2004) 41 Common Market Law Review 1481. Peterson and Shackleton (eds), The Institutions of the European Union (3rd edn, 2012).

The Institutions of the EU II

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Topic and purpose of this lecture The purpose of this lecture is to continue our study of the institutions of the European Union, focusing on the European Commission, the European Parliament and the Court of Justice (1) The European Commission The term ‘Commission’ is used in two ways: - To describe the members of the ‘College of Commissioners’; - But more widely to refer to the bureaucratic apparatus of the Commission Membership: Initially consisted of one member for small Member States and two members for larger Member States. Expansion of the EU and subsequent growth in the size of the Commission rendered decision-making and finding enough meaningful portfolios more difficult. A Protocol adopted at Nice fixed the maximum number of Commissioners at 27, but this principle was overturned by the Council (based on Article 17(5) TEU) and currently each Member State has one Commissioner (currently 28) Appointing Members The procedure for appointing members of the Commission is laid down in Article 17(7) TEU; President of the Commission is elected by the European Parliament on a proposal of the European Council; the President-elect and the Council, by common accord, adopt a list of the appointees to the Commission The President-elect, the High Representative for Foreign Affairs and Security Policy and the other members of the Commission are subject as a body to a vote of consent by the European Parliament; all are finally appointed by the European Council -

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Commissioners must act in an independent capacity and not seek or accept instructions from third parties, nonetheless, the Commission as a whole must cooperate with the Member States Members of the Commission cannot be dismissed individually by other institutions, but may be compelled by the Court of Justice to retire on grounds of serious misconduct or resign if requested by the President of the Commission; the whole Commission must resign if a vote of no confidence is passed by the European Parliament (Jacques Santer Commission in 1999) Commission works under the political guidance of its President who: o Decides matters concerning the internal organisation of the Commission; o Divides the tasks of the Commission among its members; o Appoints Vice-Presidents (except for the High Representative) o Can force a particular Commissioner to resign

The Commission is organized into Directorates General employing about 25,000 civil servants in total; - Directorates General are headed by a Director General and are subdivided into Directorates. Various specialized services (eg Legal Service) support its work - The Commission is collegiate body, meaning that decisions are subject to collective deliberation and that members bear collective responsibility at the political level Case C-191/95, Commission v. Germany [1998] ECR I-5449 39. According to settled case-law, the principle of collegiality is based on the equal participation of the Commissioners in the adoption of decisions, from which it follows in particular that decisions should be the subject of collective deliberation and that all the members of the college of Commissioners should bear collective responsibility at political level for all decisions adopted [...]

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40. The Court has also held that compliance with that principle is of concern to individuals affected by the legal consequences of a Commission decision [...] 41. Nevertheless, the formal requirements for effective compliance with the principle of collegiality vary according to the nature and legal effects of the acts adopted by that institution. 42. Thus the Court has held that, with regard to decisions adopted for the purpose of ensuring observance of the competition rules, in which the Commission finds that there has been an infringement of those rules, issues directions to undertakings and imposes pecuniary penalties upon them, that the undertakings or associations of undertakings addressed by such decisions must be assured that the operative part and the statement of reasons were actually adopted by the college of Commissioners [...] 43. In this case the detailed procedure governing the collective deliberation by the college of Commissioners concerning the issue of the reasoned opinion and the bringing of an action for failure to fulfil obligations must therefore be determined in the light of the legal effects of those decisions with regard to the State concerned. 48. It follows from all the foregoing considerations that both the Commission's decision to issue a reasoned opinion and its decision to bring an action for a declaration of failure to fulfil obligations must be the subject of collective deliberation by the college of Commissioners. The information on which those decisions are based must therefore be available to the members of the college. It is not, however, necessary for the college itself formally to decide on the wording of the acts which give effect to those decisions and put them in final form. The role of the Commission is defined in Article 17 TEU: - It has three main functions: a. As guardian of the Treaty, it enjoys broad ranging supervisory and enforcement powers b. It acts as the initiator of legislative measures in most fields of the EU’s activities c. It functions as the strongest executive arm of the EU, taking the lead in the implementation of EU policies Article 17 TEU 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 of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements. 2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide. 3. The Commission's term of office shall be five years. The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt. In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks. [...] 6. The President of the Commission shall: (a) lay down guidelines within which the Commission is to work; (b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body; (c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign

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Affairs and Security Policy, from among the members of the Commission. A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Affairs and Security Policy shall resign, in accordance with the procedure set out in Article 18(1), if the President so requests. [...]

(2) The European Parliament Originally, the European Parliament was known as the Assembly of the European Communities and was composed of members of the national parliaments of the Member States Its role has changed dramatically with the introduction of direct elections in 1979 and the enlargement of its legislative powers through successive treaty revisions. Although the fact that members of the European Parliament are elected directly creates a link between the national electorates and the Parliament, the latter can only be understood as a pan-European political body in a limited sense: - Its political constituencies are still organised on a national basis; - Elections generally suffer from a low voter turnout; - It may be questioned whether there is a European political public or ‘demos’ The maximum number of MEPs is 750, meaning that the representation of the Member States will shrink proportional with future enlargements of the Union; however, each Member State is allowed a minimum number of 6 MEPs and a maximum number of 96; although Member States are allocated MEPs based on the size of their respective populations, this system is not accurate and has been subject to constant criticism (eg Germany and some smaller Member States are underrepresented, while Luxembourg is overrepresented) -

MEPs sit in multinational groups based on political affiliation and not in national groups; there are 11 broad, multinational political groupings, the largest being the Socialist group The European Parliament is in session throughout the entire year, with meetings taking place in Strasbourg, Brussels and Luxembourg Its main officers are the President (acts as chair, exercises administrative and disciplinary functions, represents the institution), 14 vice-Presidents (support the President’s work) and 6 Questors (responsible for administrative and financial matters) It may establish permanent, temporary, specialised, general and joint committees to support its work; committees may examine particular topics in detail, prepare opinions at the request of the Council and prepare resolutions concerning new initiatives of the Parliament; they play a key role in streamlining its work

The European Parliament currently has four main functions: a. It exercises democratic supervision, in particular over the Commission by electing its President and approving the Commission as a body; by discussing the Commission's annual work programme; by exercising the right to pass a motion of censure against the Commission; by reviewing the Council’s work at the start of each Council Presidency; by stating its positions to the European Council; by reviewing the annual report of the European Central Bank b. Under the ‘ordinary legislative procedure’ (Article 289 TFEU), the European Parliament is an equal partner to the Council in the legislative process; the European Parliament is now also entitled to initiate a revision of the Treaties by submitting a proposal to the European Council c. The European Parliament now has an equal right to the Council to adopt the entire annual budget of the EU pursuant to Article 310 TFEU (co-decision) d. The European Parliament plays an important role as a defender and protector of human rights within the EU (Article 7 TEU) as well as outside the EU Article 14 1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary

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functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission. 2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats. The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph. 3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot. 4. The European Parliament shall elect its President and its officers from among its members.

(3) The Court of Justice of the European Union The Court of Justice of the European Union is the judicial institution of the EU and the EAEC. It consists of : - The Court of Justice (previously known as the European Court of Justice), - The General Court (previously known as the Court of First Instance) and; - Specialized courts (currently the European Union Civil Service Tribunal) The Court consists of one judge from each Member State, which means that all legal traditions of the Member States are represented. Judges are appointed by the Member States by common accord on the recommendations of a panel (Article 255 TFEU); judges must be chosen from persons ‘whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence’ (Article 253 TFEU). Decisions of the Court are collegiate with no dissenting or separate opinions The Court is assisted by 8 Advocates General who assist the judges in their judicial task by providing opinions to the Court on cases pending before it. Their function is particularly important given that there are no appeals to the Court’s judgment; Advocates General have the same status as Judges; they are required to be neutral as between the applicant and the defendant; their opinions often provide a fuller and sometimes more illuminating legal analysis than the judgments rendered by the Court; this is partly because Advocates General are not restricted to the arguments advanced by the parties and because their opinion is the work of a single individual rather than a collegiate body The Court is served by a President and a Registrar: - each judge and Advocate General is assisted by legal secretaries The Court may sit in three configurations: - Grand Chamber (quorum of nine) - Full Court (quorum of 15 judges) and as - Chambers of three or five judges Ratione materiae; the jurisdiction of the Court extends to all matters of EU law, except where it is specifically excluded (Article 24(1) TEU) and the review of the Treaties themselves T–584/93, Roujansky v. Council [1994] ECR II-585 11 The Court notes at the outset that this action for annulment is directed against ... the Treaty on European Union itself. 15 As regards ... the claim for a finding that the Treaty on European Union is void, it should be observed that that Treaty is not an act of a Community institution within the meaning of Articles 4 and 173 of the Treaty and, consequently, this Court has no jurisdiction to examine the legality of its provisions (see the judgment of the Court of Justice in Joined Cases 31 and 35/86

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LAISA v Council [1988] ECR 2285, paragraph 18). -

Ratione personae, the jurisdiction of the Court covers the institutions, Member States and private persons and entities. Three categories of proceedings can be brought before it: a. Contentious (eg actions under Articles 258 and 259 TFEU against a Member State for failure to fulfil its obligations) b. Non-contentious (preliminary reference procedure under Article 237 TFEU) and c. Consultative proceedings (eg international agreements under Article 218(11) TFEU)

The General Court was originally created in 1988 to ease the workload of the ECJ. It is made up of 28 judges subject to the same rules with regard to nomination, privileges, immunities and disciplinary measures as are judges of the Court of Justice (except qualifications). There are no Advocates General; the General Court sits in chambers of three or five judges and in a Grand Chamber of 13 judges; its jurisdiction is detailed under Article 256 TFEU Article 257 TFEU provides for the establishment of specialised courts which are also referred to as judicial panels; the only panel currently in existence is the European Union Civil Service Tribunal which became operational in December 2005 Questions Who are members of the European Commission? What is the role of the President of the European Commission? What functions does the European Commission carry out? Why has it been described as the ‘motor’ of European integration? Who are member of the European Parliament? How are political parties in the European Parliament organized? What are the functions of the European Parliament? How is the Court of Justice of the European Union organized? What is the role of Advocates General? What is the scope of jurisdiction of the Court of Justice? What is the difference between the Court of Justice, the General Court and specialized courts? Basic Reading Craig and de Búrca, EU Law (5th edn, 2011), Ch 2 (‘The Institutions’). Recommended Reading Barents, 'The Court of Justice after the Treaty of Lisbon' (2010) 47 Common Market Law Review 709. Corbett, ‘The Evolving Roles of the European Parliament and of National Parliaments’, in Biondi, Eeckhout, and Ripley (eds) EU Law after Lisbon (2012) 248. Further Reading Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (2010) Ch 2 (‘Legislation, Regulation, and Participation’) and Ch 4 (‘Courts, Continuity, and Change’). Jacobs, ‘The Lisbon Treaty and the Court of Justice’, in Biondi, Eeckhout, and Ripley (eds) EU Law after Lisbon (2012) 197.

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The Sources of EU Law and the Legislative Process Topic and purpose of this lecture The purpose of this lecture is to examine the sources of EU law and the legislative process. Lecture outline (1) Introduction -

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The notion of sources of EU law refers to the categories of rules that form a part of the EU legal system in accordance with the relevant rules of EU law; the Treaties do not contain an exhaustive definition of the sources of EU law nor do they establish an explicit hierarchy between the different sources Nonetheless, we may classify the sources of EU law on the basis of various criteria and distinguish between: o (a) written and unwritten sources; o (b) internal and external sources; o (c) primary and secondary sources Most commentators, based on the practice of the EU institutions, distinguish between the following categories, listed in hierarchical order: o (1) primary sources; o (2) general principles of EU law; o (3) external sources; o (4) secondary sources; o (5) atypical or sui generis acts; o (6) the case-law of the Court of Justice Some commentators question whether the case-law of the Court of Justice is a distinct source of EU law; the better view is that it is such a source, but note that it does not neatly fit into the idea of a hierarchy of legislative instruments

(2) The Sources of EU Law Primary law - Primary law comprises the founding Treaties (as amended) together with their Protocols, Annexes and Declarations; the Acts of Accession; the Charter of Fundamental Rights of the European Union (Article 6(1) TEU) - The TEU and TFEU have the same legal value (Article 1 TEU); the legal effect of Declarations annexed to the Final Acts of the Treaties is not certain General principles of EU law - General principles of EU law consist of unwritten principles of law inherent in the EU legal system; the ECJ has relied prominently on general principles of law in its jurisprudence to fill gaps and strengthen the coherence and effectiveness of EU law (not limited to Article 340(2) TFEU); the ECJ has derived general principles from several sources o (a) public international law:  The ECJ has endorsed the right of nationals to enter and remain in the territory of their own country (Case 41/74, Van Duyn [1974] ECR 1337) and certain rules of customary international law concerning the law of treaties (Case C-162/96, Racke [1998] ECR I3655), but is has rejected other principles, such as the principle of reciprocity Joined Cases 90/63 & 91/63, Commission v. Luxembourg and Belgium [1964] ECR 625, at 631

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The defendants, arguing that the application is inadmissible, complain that the Community failed to comply with the obligations falling on it by reason of the Resolution of the Council of 4 April 1962, and was thus responsible for the continuance of the alleged infringement of the Treaty, which should have ceased before the issue of the reasoned opinion under Article 169. In their view, since international law allows a party, injured by the failure of another party to perform its obligations, to withold performance of its own, the Commission has lost the right to plead infringement of the Treaty. However this relationship between the obligations of parties cannot be recognized under Community law. In fact the Treaty is not limited to creating reciprocal obligations between the different natural and legal persons to whom it is applicable, but establishes a new legal order which governs the powers, rights and obligations of the said persons, as well as the necessary procedures for taking cognizance of and penalizing any breach of it. Therefore, except where otherwise expressly provided, the basic concept of the Treaty requires that the Member States shall not take the law into their own hands. Therefore the fact that the Council failed to carry out its obligations cannot relieve the defendants from carrying out theirs. (b) General principles common to the laws of the Member States: consist of common principles recognized by the legal systems of all Member States (eg principle of the prohibition of unjust enrichment, non-contractual liability, protection of business secrets) Advocate General Slynn quoting Judge Kutscher in Case 155/79 AM and S v. Commission [1982] ECR 1642, at 1649 “... when the Court interprets or supplements Community law on a comparative law basis it is not obliged to take the minimum which the national solutions have in common, or their arithmetic mean or the solution produced by a majority of the legal systems as the basis of its decision. The Court has to weigh up and evaluate the particular problem and search for the 'best' and 'most appropriate' solution. The best possible solution is the one which meets the specific objectives and basic principles of the Community ... in the most satisfactory way.” (c) General principles specific to the EU: these can be of a constitutional nature (such as the principle of conferral and subsidiarity applicable to the EU as an organization; the principles of direct effect, direct applicability and supremacy applicable to EU law; the principles of solidarity applicable to the Member States and institutions; the principle of equality and non-discrimination applicable to individuals) or reflect the economic philosophy of the internal market (principles of the free movement of goods, people, services and capital) (d) principles of human rights: through its case-law, the ECJ has developed human rights and fundamental freedoms into one of the key principle of EU law International law -

Pursuant to Article 216(2) TFEU international agreements entered into by the EU with third countries or international organisations are binding upon the EU institutions and the Member States; their provisions, and decisions passed by bodies created by them, form an integral part of EU law (Case 181/73 Haegeman [1974] 449, at para. 5); in the hierarchy of sources, they are placed below primary sources and general principles of EU law, but above secondary sources

Case C-61/94, Commission v. Germany (International Dairy Arrangement) [1996] ECR I3989 53. When the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the Treaty. Likewise, an implementing regulation must, if possible, be given an interpretation consistent with the basic regulation [...] Similarly, the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.

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The ECJ has accepted the binding nature of international agreements concluded between the EU because their conformity with the Treaties can be verified in advance - a vetting process (Article 218(11) TFEU) Only those agreements which are compatible with the EU order

Secondary acts -

Secondary acts are measures adopted by the institutions based on the Treaties (see reference to "legislative powers of the Community" in Case 106/77, Simmenthal [1978] ECR 629, at para. 18) Adopted on the basis of the primary acts. Some secondary acts are binding (Legal Instruments) and some that are non-binding (the Treaty itself tells us which are not binding. They are still measures but not legal acts) o Binding acts:  Legislative acts adopted by the ordinary or special legislative procedure (Article 289(3) TFEU)  Definition: A legal measure adopted by the institutions on the basis of the ordinary legislative procedure or the special legislative procedures  Binding non-legislative acts, namely delegated acts (Article 290(1)TFEU) and implementing acts (Article 290(2) TFEU)  Definition: A legal act adopted on the basis of any other procedure than the ordinary or special legislative procedures.  Delegated acts are acts adopted by the commission on the basis of a legislative act.  Implementing acts: o Primary rules of the treaty which allows Parliament to adopt legislative acts, but then these still need to be implemented – usually dome by the Commission or the Council.

Recommendations and opinions shall have no binding force. Article 288 TFEU To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Choice of Form -

The choice between different legislative acts (regulation, directive or decision) is determined in express terms by the Treaties or in the absence of such a determination must be based on considerations of appropriateness and proportionality If the treaty tells the institutions which regulation or directive they must act, they have no choice but to do so. Where the treaty does not tell the institutions which legislative to choose, they have options. o They must choose whatever legal instrument is going to be the most appropriate to achieve that aim.

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 

E.g. subsidiarity. Considerations of appropriateness and proportionality.

Case 20/59 Italy v. High Authority [1960] ECR 663 The third paragraph of Article 70 provides that 'The scales, rates and all other tariff rules of every kind applied to the carriage of coal and steel within each Member State and between Member States shall be published or brought to the knowledge of the High Authority'. It must be observed that these provisions are silent with regard to the conditions of their application and the implementation measures which they assume and certainly they do not give the High Authority any power to take decisions in this respect. Moreover, a comparison between the third paragraph of Article 70 and the provisions of Article 60 (2) (a) shows that in a similar matter the Treaty has made the obligation to publish provided for in Article 60 subject to the power of the High Authority to provide for its application by providing that this publication must take place 'to the extent and in the manner prescribed by the High Authority after consulting the Consultative Committee'. [...] The absence of any provision in this respect in Article 70 shows on the other hand that in the transport sector the wording of the Treaty denies the High Authority any power to take implementing decisions [...] Although it is true that by virtue of the general principle, applied to transport by Article 70, checking discrimination and taking action against it is for the High Authority, it is not however possible to infer from this principle a power for the High Authority to take decisions concerned with prior control by laying down the publication of scales or rates, since such a power is exceptional and subject to renunciation by the Member States which in the present case the Treaty does not provide for either expressly or by implication. The High Authority thus has no power to implement the provisions of the third paragraph of Article 70 by means of decisions.

Regulataions - Are the most important form of EU acts; they are of general application and are binding in their entirety; regulations create a uniform legal framework - Likeness to Acts or Parliament – generally applicable legislative measure of the highest order. o They are general application, (part of definition). - Once the EU adopts a regulation it is going to apply to everyone everywhere – no need to specify who it applies to. – blanket application. - Regulations are binding in every respect- Member states simply have to comply with them, no need to apply them. - Regulations apply in a certain area – easy to see who is bound by it e.g. agriculture – it is of relevance to people of that sector whatever it may be. o Might be possible to identify the member states who will be bound by that regulation however does not take away from the general nature and applicability of this regulation.

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Case 101/76 Koninklijke Scholten Honing v. Council and Commission [1977] ECR 797 9 By virtue of the second paragraph of Article 189 of the Treaty the criterion for distinguishing between a regulation and a decision is whether the measure at issue is of general application or not. 10 The nature of the contested measures must therefore be studied and in particular the legal effects which it is intended to or does actually produce. 20 A regulation which provides for the reduction of a production refund for a whole marketing year with regard to a certain product processed from cereals and rice and for its complete abolition from the following marketing year is by its nature a measure of general application within the meaning of Article 189 of the Treaty. 21 It in fact applies to objectively determined situations and produces legal effects with regard to categories of persons regarded generally and in the abstract. 22 It only affects the applicant by virtue of its capacity as a producer of glucose having a high fructose content without any other specification. 23 Moreover, the nature of a measure as a regulation is not called in question by the possibility of determining more or less precisely the number or even the identity of the persons to whom it applies at a given moment as long as it is established that it is applied by virtue of an objective legal or factual situation defined by the measure in relation to the objective of the latter. 24 Moreover, the fact that a legal provision may have different actual effects for the various persons to whom it applies is not inconsistent with its nature as a regulation when that situation is objectively defined. Directives: - Are binding as to the result to be achieved, but leave Member States a choice as to the measures, procedures and methods used to achieve that result; o they are not of general application, although may be addressed to all Member States o They apply to whichever member states they are addressed to; can be applied to one, many or all states. Tailored accordingly.  (see Case 70/83 Gerda Kloppenburg v. Finanzamt Leer, at para. 11, where ECJ described EC directives addressed to all Member States as measures having ‘general application’; the main difference between a regulation and directive in such a situation is the discretion left to Member States) - Directives often describe the result to be achieved in very precise and detailed terms and thus may leave limited room for Member State discretion - Regulations – inherent that it applies to all. Directives – only apply to where they are directed. - Directives are binding as to the result to be achieved: they create certain results and give member states a timeframe to achieve a particular result within. - Member states have a choice of means and methods as to how they go about implementing that directive however the Member states must have achieved those results within the specified time and of the specified result. - Much case law on where the court says that it is at the Member States’ discretion as to how they achieve – sometimes no discretion is given: (Case 102/79, Commission v Belgium) Case 38/77 Enka [1977] ECR 2203 11 It emerges from the third paragraph of Article 189 of the Treaty that the choice left to the Member States as regards the form of the measures and the methods used in their

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adoption by the national authorities depends upon the result which the Council or the Commission wishes to see achieved. 12 As regards the harmonization of the provisions relating to customs matters laid down in the Member States by law, regulation or administrative action, in order to bring about the uniform application of the Common Customs Tariff it may prove necessary to ensure the absolute identity of those provisions which govern the treatment of goods imported into the Community, whatever the Member State across whose frontier they are imported. 16 If it is not to cause distortions and deflections of trade, that provision must therefore be given an identical application in all the Member States. 17 It must thus be concluded that as regards the content of the concept of the 'price paid or payable' referred to in Article 9 of Regulation No 803/68 the directive leaves the national authorities no area of discretion, with the result that the terms of the directive must prevail over any provisions which may be incompatible with it in each Member State. -

In any case, the implementing measures adopted by the Member States must be appropriate and effective (Case 102/79, Commission v Belgium [1980] ECR 1473)

Decisions: - Have no general scope of application unless addressed to all Member States; they are binding in their entirety on their addressees only Case 54/65 Compagnie des Forges de Chatillon, Commentry & Neuves-Maisons v. High Authority [1966] ECR 185, at 195 A decision must in fact appear as a measure emanating from the competent authority, intended to produce legal effects and constituting the culmination of procedure within that authority, whereby the latter gives its final ruling in a form from which its nature can be identified.

Formal and Substantive Requirements Legislative acts must conform to certain formal requirements: (a) Statement of reasons (Article 296 TFEU) and Case 24/62 Germany v Commission [1963] ECR 63, at 69 (b) Legal basis: choice of a legal basis must be based on objective criteria amenable to judicial review by the CJEU; if a EU measure pursues a twofold purpose where one is dominant and the other merely incidental, the act must be based on a single legal basis; where the act pursues inseparably linked objectives of equal importance, exceptionally it may based on several legal bases Case 24/62 Germany v Commission [1963] ECR 63, at 69 In imposing upon the Commission the obligation to state reasons for its decisions, Article 190 is not taking mere formal considerations into account but seeks to give an opportunity to the parties of defending their rights, to the Court of

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exercising its supervisory functions and to Member States and to all interested nationals of ascertaining the circumstances in which the Commission has applied the Treaty. To attain these objectives, it is sufficient for the Decision to set out, in a concise but clear and relevant manner, the principal issues of law and of fact upon which it is based and which are necessary in order that the reasoning which has led the Commission to its Decision may be understood.

Joined Cases C-164/97 and C-165/97 EP v. Council (Protection of Forests) [1999] ECR I1139 12. It must be borne in mind that in the context of the organisation of the powers of the Community, the choice of a legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure [...] 13. It is clear from the provisions of the amended regulations that the aims of the Community schemes for the protection of forests are partly agricultural since they are intended in particular to contribute to safeguarding the productive potential of agriculture, and partly of a specifically environmental nature since their primary objective is to maintain and monitor forest ecosystems. 14. In such circumstances it is necessary, in order to determine the appropriate legal basis, to consider whether the measures in question relate principally to a particular field of action, having only incidental effects on other policies, or whether both aspects are equally essential. If the first hypothesis is correct, recourse to a single legal basis is sufficient [...]; if the second is correct, it is insufficient [...] and the institution is required to adopt the measure on the basis of both of the provisions from which its competence derives [...] However, no such dual basis is possible where the procedures laid down for each legal basis are incompatible with each other [...] 16. In this case, although the measures referred to in the regulations may have certain positive repercussions on the functioning of agriculture, those indirect consequences are incidental to the primary aim of the Community schemes for the protection of forests, which are intended to ensure that the natural heritage represented by forest ecosystems is conserved and turned to account, and does not merely consider their utility to agriculture. Measures to defend the forest environment against the risks of destruction and degradation associated with fires and atmospheric pollution inherently form part of the environmental action for which Community competencies founded on Article 130s of the Treaty. 19. It follows that the contested regulations do not constitute rules on the production and marketing of agricultural products for which, to the extent to which those rules contribute to the attainment or one or more objectives of the common agricultural policy set out in Article 39 of the Treaty, Article 43 of the Treaty would have been the appropriate legal basis [...] 20. The Parliament is therefore correct in its assertion that, by basing the contested regulations on Article 43 of the Treaty although Article 130s was the appropriate legal basis, the Council has infringed essential procedural requirements and undermined its prerogatives. The contested regulations must therefore be annulled. Publication of a measure; - An act emanating from the institutions cannot produce legal effect unless it comes to the knowledge of its addressees

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Case 98/78, Racke [1979] ECR 69 15 [...] A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it. Certain substantive requirements (such as non-retroactivity) also apply

Non-binding acts -

Non-binding acts: Article 288 TFEU expressly provides that recommendations and opinions have no binding force; although they are not sources of law, they may have legal effects They can still have legal effects – See Grimaldi

Case 322/88 Grimaldi [1989] ECR 4407 13 Recommendations, which according to the fifth paragraph of Article 189 of the Treaty are not binding, are generally adopted by the institutions of the Community when they do not have the power under the Treaty to adopt binding measures or when they consider that it is not appropriate to adopt more mandatory rules. 18 However, in order to give a comprehensive reply to the question asked by the national court, it must be stressed that the measures in question cannot therefore be regarded as having no legal effect. The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions. Acts not expressly mentioned in Article 288 TFEU - These include (a) acts mentioned elsewhere in the Treaties (eg interinstitutional agreements under Article 295 TFEU; Council decisions in the CFSP under Articles 28 and 29 TEU) and (b) acts not mentioned by the Treaties (eg resolutions, deliberations, conclusions, communications and common declarations) Treaties are not legislative acts, they are PRIMARY LAW Case C-49/02 Heidelberger Bauchemie [2004] I-6129 16 In that regard, the Court noted [...] that the Council of the European Union and the Commission made a joint declaration, entered in the minutes of the Council meeting on the adoption of the Directive [...] 17 That declaration cannot be used to interpret a provision of secondary legislation where, as in this case, no reference is made to the content thereof in the wording of the provision in question and it therefore has no legal significance [...] The Council and the Commission also explicitly recognised that limitation in the preamble to their declaration, which states: ‘since the following statements of the Council and the Commission are not part of the legal text they are without prejudice to the interpretation of that text by the Court of Justice of the European Communities’.

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(3) Revision of the Treaties - The revision of the Treaties is not a legislative process in Case 43/75 Defrenne [1976] ECR 455, at para. 58, the ECJ held that the “Treaty can only be modified by means of the amendment procedure carried out in accordance with [ex] Article 236” - The revision of the Treaties is governed by Article 48 TEU, which sets out two revision procedures: (a) the ordinary revision procedure (b) the simplified revision procedures

(4) Legislative procedures - The pre-Lisbon legislative process was very complicated; in response, the Lisbon Treaty sought to o (a) simplify it by extending the applicability of the ordinary legislative procedure and reducing the scope for special procedures o (b) reduce the democratic deficit in the legislative process and increase its transparency -

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The legislative process is usually initiated by the Commission and consists of several stages: o (a) the Commission prepares a draft and carries out impact assessment o (b) the draft is adopted by the Commission o (c) the proposal is sent to the EP, Council and national parliaments; in some areas, legislation is initiated through other processes (eg Article 241 TFEU entitles the EP and Council to request the Commission to prepare a proposal) The ordinary legislative procedure is governed by Article 294 TFEU and consists of various stages: o (a) on first reading, the EP delivers an opinion which the Commission may or may not incorporate into the proposal; the proposal is then submitted to the Council which may accept, reject or introduce its own amendments; o (b) on second reading, the EP will express its opinion on the Council proposals and may make amendments on which the Commission comments; the Council either approves of the EP’s amendments or rejects them; o (c) conciliation stage: a Conciliation Committee is convened to reach agreement within six weeks o (d) the text agreed by the Conciliation Committee must be adopted within six weeks on third reading

Questions What does the term ‘sources of EU law’ refer to? How can these sources be classified? What do we mean by hierarchy of sources? Why are the primary sources of EU law ‘primary’? Where do the general principles of EU law derive from? Which rules of international law apply within the EU legal system?

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What are secondary rules of EU law? What are legislative acts? What is the difference between regulations, directives and decisions? What formal criteria must these instruments comply with? What are non-binding measures? Are they devoid of legal effects? What procedures govern the revision of the Treaties? Explain the ordinary legislative procedure. What special legislative procedures exist?

Basic Reading Craig and de Búrca, EU Law (5th edn, 2011), Ch. 4 ('Instruments and Hierarchy of Norms'), Ch. 5 ('Legislation and Decision-Making'). Recommended Reading Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (2010) Ch. 7 ('Legal Acts, Hierarchy, and Simplification'). Hartley, The Foundations of European Union Law (7th edn, 2010), Ch. 3 ('Acts of the Member States') and Ch. 4 ('Union Acts'). Lenaerts and Desomer, ‘Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures’ (2005) 11 European Law Journal 744.

Further Reading Türk, ‘Lawmaking after Lisbon’, in Biondi, Eeckhout, and Ripley (eds) EU Law after Lisbon (2012) 62. De Witte ‘Treaty Revision Procedures after Lisbon’, in Biondi, Eeckhout, and Ripley (eds) EU Law after Lisbon (2012) 107. Bast, 'Legal Instruments and Judicial Protection', in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 345.

The Nature Of The EU Legal Order

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Topic and purpose of this lecture The purpose of this lecture is to consider the contribution of the Court of Justice to the development of EU law and the nature of the EU legal order.

1) The Contribution of the Court of Justice -

The function of the Court of Justice under the Treaties is to ‘ensure that in the interpretation and application of the Treaties the law is observed’ (Article 19(1) TEU); This reflects the common view that the role of courts is to authoritatively settle legal disputes

Traditionally, courts are understood to interpret and apply the law, not to make it; however, even this traditional view allows for some judicial discretion. Today, few would dispute that courts regularly engage in the development of the law and that this is part of their judicial function: the judicial function thus stretches from a passive end (applying the law) to an activist end (shaping the law) - The Court of Justice is commonly seen as an activist court based on its privileged position as the sole and later highest judicial authority of the EU legal system o b) as the highest authority on matters of EU law in the Member States owing to the preliminary reference procedure (Article 267 TFEU) Activism was not necessarily written into the Treaties, it is an approach that the Court has chosen itself; this may be illustrated by the operation of precedent - There is no formal doctrine of precedent in EU law as judgments are binding only on the parties to the case but do not bind the Court of Justice, the General Court or national courts; however, in practice a strong system of informal precedent is in operation for several reasons: o (a) legal certainty o (b) the need to maintain a consistent jurisprudence o (c) the Court’s reluctance to overrule earlier cases o (d) the general applicability of interpretative judgments Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health [1982] ECR 3415 13 It must be remembered in this connection that in its judgment of 27 March 1963 in Joined Cases 28 to 30/62 (Da Costa v Nederlandse Belastingadministratie [1963] ECR 31) the Court ruled that: "Although the third paragraph of Article 177 unreservedly requires courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law ... to refer to the Court every question of interpretation raised before them, the authority of an interpretation under Article 177 already given by the Court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case." 14 The same effect, as regards the limits set to the obligation laid down by the third paragraph of Article 177, may be produced where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical. 16 Finally, the correct application of Community law may be so obvious as to leave no

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scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.

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The most important method used by the Court to develop EU law is the method of ‘teleological’ interpretation; o the interpretation of international agreements is governed by Article 31 of the Vienna Convention on the Law of Treaties (1969)

Interpretation A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Instead of reading the terms (text) of the treaty in its context and the light of its object and purpose, the Court of Justice has often given priority to the ‘general context’ and the underlying object and purpose of the Treaties over the text itself, thus favouring interpretations which serve the overall aims, spirit and effectiveness of the Treaties rather than interpretations grounded in their textual meaning; this is referred to as a teleological approach (telos = end/aim/objective) Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health [1982] ECR 3415 [...] every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. -

In particular, the Court often relies on general principles such as o effectiveness, o coherence or o the unity of the EU legal system) to guide its interpretation of the Treaties; although such contextual and purposive interpretation is not unknown in general international law (see Further Reading: McMahon), the Court uses the teleological method far more frequently and to far greater constitutional effect

2. Establishing the autonomy of the EU legal order The most far-reaching constitutional principle developed by the Court in its case-law is the doctrine of the autonomy of the EU legal order.

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Many of the other constitutional questions and principles flow from this doctrine; The seminal case is van Gend en Loos, which concerned theinterpretation of ex Article 12 EEC [now Article 30 TFEU] Case 26/62, van Gend en Loos [1963] ECR 3, at 11–13 The first question of the Tariefcommissie is whether Article 12 of the Treaty has direct application in national law in the sense that nationals of Member States may on the basis of this Article lay claim to rights which the national court must protect. To ascertain whether the provisions of an international treaty extend so far in their effects it is necessary to consider the spirit, the general scheme and the wording of those provisions. -

The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. o This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. o It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. o Furthermore, it must be noted that the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee. [...] The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.

The principle that EU law is a distinct legal system separate from ‘ordinary’ international law has been invoked many times in subsequent cases. The most prominent case of recent years is that of Kadi, which concerned a challenge brought against a Community Regulation implementing anti-terrorism sanctions provided for by United Nations Security Council Resolution 1267 (1999); in Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649 (esp. at paras 181– 208), the Court of First Instance held that the obligations of the Member States to comply with Resolution 1267 take precedence over their obligations under the EC Treaty pursuant to both the United Nations Charter and the EC Treaty itself; this was overruled by the ECJ Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council and Commission [2008] ECR I-6351 280. The Court will now consider the heads of claim in which the appellants complain that the Court of First Instance, in essence, held that it followed from the principles governing the relationship between the international legal order under the United Nations and the Community legal order that the contested regulation, since it is designed to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations affording no latitude in that respect, could not be subject to judicial review of its internal lawfulness, save with regard to its compatibility with the norms of jus cogens, and therefore to that extent enjoyed immunity from jurisdiction.

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281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v. Parliament [1986] ECR 1339, paragraph 23). 282. It is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has, moreover, already held to form part of the very foundations of the Community (see, to that effect, Opinion 1/91 [1991] ECR I6079, paragraphs 35 and 71, and Case C-459/03 Commission v. Ireland [2006] ECR I4635, paragraph 123 and case-law cited). Doctrine of Autonomy - The doctrine of the autonomy of the EU legal order is open to criticism on several grounds: o It may be questioned whether the legal system created by Treaties was really so different from ‘ordinary’ international law  (see Recommended Reading: Denza) o Certain arguments in van Gend are unconvincing and underdeveloped: eg a reference to ‘peoples’ in the preamble can be found in the United Nations Charter too; the Court does not explain why the objective of creating an internal market is special o Certain arguments are flawed: eg the notion that the institutions have been endowed with ‘sovereign rights’ is clearly misguided o The doctrine is applied to defeat the actual text of the Treaties: in Kadi, the ECJ invoked the autonomy of the Community order to emphasize its distinct existence; although Kadi can be read in a way which suggests that this autonomy is only relative  (see Further Reading: de Witte)  The fact remains that ECJ relied on this principle to circumvent the text of the Treaty  (see Further Reading: Sari) o The internal logic of the ECJ’s reasoning is circular: Opinion 1/91, European Economic Area [1991] ECR I-6079 17 It follows inter alia from Articles 2, 8a and 102a of the EEC Treaty that that treaty aims to achieve economic integration leading to the establishment of an internal market and economic and monetary union. Article 1 of the Single European Act makes it clear moreover that the objective of all the Community treaties is to contribute together to making concrete progress towards European unity. 18 It follows from the foregoing that the provisions of the EEC Treaty on free movement and competition, far from being an end in themselves, are only means for attaining those objectives. 19 The context in which the objective of the agreement is situated also differs from that in which the Community aims are pursued. 20 The EEA is to be established on the basis of an international treaty which, essentially, merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the inter-governmental institutions which it sets up. 21 In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of

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law. As the Court of Justice has consistently held, 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 (see, in particular, the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1). The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. 22 It follows from those considerations that homogeneity of the rules of law throughout the EEA is not secured by the fact that the provisions of Community law and those of the corresponding provisions of the agreement are identical in their content or wording. Opinion 1/91 What Opinion 1/91 suggests is that the Treaties created a new legal order of international law because this legal order has primacy and direct effect, but that primacy and direct effect arise because the Treaties created a new legal order of international Opinion 1/91 also highlights the operation of the teleological approach: the otherwise identical terms of the EEC Treaty and the proposed EEA Treaty have to be interpreted differently, because the objective of the EEC Treaty is European unity, whereas this is not an objective of the EEA Treaty - The Court’s teleological approach raises serious questions of judicial propriety and legitimacy: these are explored in greater detail in Basic Reading: de Waele; however, even though the initial legal justification of many constitutional principles developed by the Court is weak or unconvincing, these principles are now generally accepted; we can thus speak of a constitutional equilibrium International law and domestic law The doctrine of autonomy raises the question as to how the EU legal order relates to the domestic legal orders of the Member States: to better understand the Court’s answer to this question, it is necessary to briefly consider the relationship between international law and domestic law -

Two points need to be kept in mind: o (a) both international law and domestic legal systems have something to say on their mutual relationship; o (b) two separate questions are entailed by this relationship:  what effect do rules of international law have in domestic law (applicability question) and which set of rules takes priority in the case of conflicts (precedence question)? From the perspective of international law, rules of international law prevail over rules of domestic law on the international level; this means that a State cannot rely on its domestic law to avoid or circumvent its obligations under international law; Article 27, Vienna Convention on the Law of Treaties (1969) A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. -

However, international law does not thereby declare that rules of international law prevail overdomestic law on the domestic level too From the perspective of domestic law, the relationship between international law and domestic law has traditionally been explained with reference to two concepts: o (a) Monism:  based on the idea international law and domestic laws are not separate systems, but that rules of international law automatically form part of domestic law o (b) Dualism:

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

based on the notion that international law and domestic law are self-contained legal systems operating independently of one another and that rules of international law apply in domestic law only to the extent that they have been accepted into domestic law

The distinction between monism and dualism is problematic for various reasons: a) monism and dualism are analytical abstractions and most national legal systems do not adopt one approach or the other b) monism and dualism are concerned with the applicability of rules of international law but say nothing about their status in domestic law Actual State practice is very diverse: a) relationship of domestic law with international law is influenced by legal traditions; b) domestic systems usually combine monist and dualist elements; c) the legal status ascribed to applicable rules of international law varies greatly a. (for more detail, see Recommended Reading: Shaw)

The principle of Direct Applicability International law does not provide that rules of international law are automatically applicable within domestic legal systems; by contrast, the ECJ has proclaimed that rules of EU law are directly applicable within the domestic legal systems of the Member States In its early case-law, the Court has derived this principle of direct applicability from the special nature of the Treaties and the autonomous character of Community law Case 26/62, van Gend en Loos [1963] ECR 3, at 11–13 The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. [...] The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. [...] The implementation of Article 12 does not require any legislative intervention on the part of the states. The fact that under this Article it is the Member States who are made the subject of the negative obligation does not imply that their nationals cannot benefit from this obligation. Certain observations may be made regarding the Court’s reasoning: a) The Court conflates two separate issues: whether the Treaty applies directly in national law (direct applicability) and whether it confers rights on individuals (direct effect); b) The Court seems to derive the direct applicability of Article 12 from the special character of the Community legal order, but does not explain this in detail; this is confirmed by later cases Case 6/64 Costa v. ENEL [1964] ECR 585 By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal

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systems of the Member States and which their courts are bound to apply. (c) Certain arguments are misguided: the Court’s suggestion that Article 12 must be directly applicable because the Member States did not enter a reservation reverses the burden of proof . subsequent cases provide additional details, but are not necessarily more convincing Case 28/67 Firma Molkerei-Zentrale Westfalen/Lippe GmbH v. Hauptzollamt Paderborn [1968] ECR 143, at 152 The Bundesfinanzhof further alleges that according to German law the fiscal courts do not have the power in this sphere to take decisions the effects of which extend beyond the particular case in question [...] These arguments as a whole, which are based on rules of national law, cannot prevail over the rules of law laid down by the Treaty. It is clear from the fundamental principles of the Treaty and the objectives which it is intended to attain that those provisions, so far as by their nature they are capable of doing so, enter into national legal systems without the assistance of any national measure. The complexity of given situations in a State cannot alter the legal nature of a directly applicable Community provision, especially as the Community rule must be applied with the same force in all Member States. In particular, the prohibition laid down by Article 95 would lose the effect which it derives from the Treaty if the force of this provision depended on national implementing measures not provided for in the Treaty and without which the prohibition itself would have no effect. The argument suffers from certain problems: a) the Court again conflates two separate issues: a. first, whether rules of domestic law can justify non-compliance with the Treaty; b. second, what the legal effect of the Treaty is within the domestic law of the Member States b) the Court refers to ‘fundamental principles of the Treaty’ without elaborating c) The reasoning is circular: a. Article 95 would lose its effect if it were not directly applicable, therefore it must be directly applicable, otherwise it would lose its effect In Simmenthal, the ECJ held that direct applicability means that rules of Community law must be fully and uniformly applied in all Member States from the date of their entry into force and for so long as they continue to be in force; what Simmenthal and Firma Molkerei-Zentrale suggests is that ultimately the principle of direct applicability is justified on the basis of increasing the effectiveness of the EU legal system Case 106/77 Simmenthal [1978] ECR 629 14 Direct applicability [...] means that rules of Community law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force. 15 These provisions are therefore a direct source of rights and duties for all those affected thereby, whether Member States or individuals, who are parties to legal relationships under Community law. 16 This consequence also concerns any national court whose task it is as an organ of a Member State to protect, in a case within its jurisdiction, the rights conferred upon individuals by Community law. Direct applicability of the Treaties

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Since the domestic laws of the Member States accord different effects to international agreements within their legal systems, the Court held that the Treaties had to be directly applicable and sought to justify this on the basis that no reservations were entered by the States in their instruments of ratification (as a matter of law, this is misguided) Order of the Court of 22 June 1965, Joined Cases C-9/65 and C-58/65, San Michele v. High Authority [1967] ECR 27, at 30 Whereas it is clear from the instruments of ratification, whereby the Member States bound themselves in an identical manner, that all States have adhered to the Treaty on the same conditions, definitively and without any reservations other than those set out in the supplementary protocols, and that therefore any claim by a national of a Member State questioning such adherence would be contrary to the system of Community law; Whereas such a claim is all the more inadmissible in that, in this case, any decision to suspend judgment would be tantamount to reducing the Community to a cipher by regarding the instrument of ratification either as only partially accepting the Treaty, or as the means of according to it different legal consequences, varying with the Member State concerned, or as the means whereby some nationals might evade its rules; Whereas the participation of the Italian Republic in the common institutions and in the rights and obligations arising from the Treaty in fact preclude its nationals from avoiding the complete and uniform application of the said Treaty and from thus obtaining different treatment from that of other nationals in the Community Direct applicability of regulations The direct applicability of regulations is expressly recognised in Article 288 TFEU: no implementing measures are needed or permissible Case 34/73 Variola [1973] ECR 981 9 In the fourth and fifth questions, the Court is, in effect, asked to determine whether the disputed provisions of the Regulations can be introduced into the legal order of Member States by internal measures reproducing the contents of Community provisions in such a way that the subject-matter is brought under national law, and the jurisdiction of the Court is thereby affected. 10 The direct application of a Regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law. By virtue of the obligations arising from the Treaty and assumed on ratification, Member States are under a duty not to obstruct the direct applicability inherent in Regulations and other rules of Community law. Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Community Regulations throughout the Community. 11 More particularly, Member States are under an obligation not to introduce any measure which might affect the jurisdiction of the Court to pronounce on any question involving the interpretation of Community law or the validity of an act of the institutions of the Community, which means that no procedure is permissible whereby the Community nature of a legal rule is concealed from those subject to it.

Direct applicability of Directives - Directives pose a special problem in as much as they require implementing measures by the Member States; whether directives are directly applicable is therefore a matter of controversy

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It has been suggested that certain cases of the Court demonstrate that directives are generally applicable once the period set aside for their implementation has expired; however, the better view is that these cases merely demonstrate that the Member States have a continuing duty of implementation

Case C-129/96 Inter-Environnement Wallonie ASBL v Region Wallonne [1997] ECR I-7411 40 It should be recalled at the outset that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the Treaty and by the directive itself [...] That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts [...] 41 The next point to note is that, in accordance with the second paragraph of Article 191 of the EEC Treaty, applicable at the material time, '[d]irectives and decisions shall be notified to those to whom they are addressed and shall take effect upon such notification'. It follows from that provision that a directive has legal effect with respect to the Member State to which it is addressed from the moment of its notification. 42 Here, and in accordance with current practice, Directive 91/156 itself laid down a period by the end of which the laws, regulations and administrative provisions necessary for compliance are to have been brought into force. 43 Since the purpose of such a period is, in particular, to give Member States the necessary time to adopt transposition measures, they cannot be faulted for not having transposed the directive into their internal legal order before expiry of that period. 44 Nevertheless, it is during the transposition period that the Member States must take the measures necessary to ensure that the result prescribed by the directive is achieved at the end of that period. 45 Although the Member States are not obliged to adopt those measures before the end of the period prescribed for transposition, it follows from the second paragraph of Article 5 in conjunction with the third paragraph of Article 189 of the Treaty and from the directive itself that during that period they must refrain from taking any measures liable seriously to compromise the result prescribed.

Questions

What is the function of the Court of Justice? Why has the Court been described as an ‘activist’ Court? Can judicial activism be justified? What is the teleological method of interpretation? How does it differ from the general rule of interpretation laid down in Article 31 of the Vienna Convention on the Law of Treaties? Give examples of teleological interpretation from the Court’s case-law. What does the doctrine of the autonomy of the EU legal order proclaim? How convincing is the Court’s attempt to justify the autonomy of EU law? Did the ECJ over-emphasize the novel elements

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of the Treaties in van Gend? What rules govern the relationship between international law and domestic law? What position does international law take regarding this relationship? What is monism and dualism? What does the principle of direct applicability mean? How does this differ from the principle of direct effect? Why did the Court proclaim the direct applicability of EU law? Is its justification convincing? Why do different considerations apply to the direct applicability of regulations and directives?

Basic Reading Winter, ‘Direct Effect and Direct Applicability: Two Distinct and Different Concepts in Community Law’, (1972) 9 Common Market Law Review 425. [http://tinyurl.com/palvzn4]. de Waele, ‘The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment’ (2010) 6 Hanse Law Review 1. [http://tinyurl.com/qj6x4qj].

Recommended Reading de Witte, ‘European Union Law: How Autonomous is its Legal Order?’ (2010) 65 Zeitschrift für öffentliches Recht 141 [http://tinyurl.com/qxvbak2]. Denza, ‘Two Legal Orders: Divergent or Convergent?’ (1999) 48 International and Comparative Law Quarterly 257. Shaw, International Law (6th, 2008), Ch. 5 (‘International Law and Municipal Law’) [https://www.dawsonera.com/readonline/9780511574429/startPage/297]. Further Reading Schilling, ‘The Autonomy of the Community Legal Order: An Analysis of Possible Foundations’ (1996) 37 Harvard International Law Journal 389. Weiler and Haltern, ‘The Autonomy of the Community Legal Order-Through the Looking Glass’ (1996) 37 Harvard International Law Journal 411. Allain, ‘The European Court of Justice is an International Court’ (1999) 68 Nordic Journal of International Law 249. McMahon, ‘The Court of the European Communities Judicial Interpretation and International Organization’ (1961) 37 British Yearbook of International Law 320. Barents, The Autonomy of Community Law (2004). de Witte, ‘The European Union as an International Legal Experiment’, in de Búrca and Weiler, The Worlds of European Constitutionalism (2011) 19.

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Sari, ‘The Relationship between Community Law and International Law after Kadi: Did the ECJ Slam the Door on Effective Multilateralism?’, in Happold (ed), International Law in a Multipolar World (2011) 303 [http://ssrn.com/abstract=1635759]

The Principle Of Supremacy

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Topic and purpose of this lecture The purpose of this lecture is to study the establishment, role and scope of the principle of supremacy and its reception by the Member States. Lecture outline (1) A question of priorities -

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As discussed in an earlier lecture, the relationship between international law and domestic law raises two distinct questions: o (a) the applicability question  So rules of international law and of community law apply within the legal systems of the member states? o (b) the precedence question  Assuming those rules do apply automatically penetrate legal system, what is their legal effect, what happens in terms of conflict?  International law argues that it does not penetrate the domestic system and therefore supremacy will not apply.  Community law, the first question is answered by the courts of justice…..??????? The ECJ answered the applicability question by holding that Community law is directly applicable within the legal systems of the Member States (Case 6/64, Costa v. ENEL [1964] ECR 585) The precedence question is of some significance: given the wide scope of the treaties, conflicts between Community law and domestic law are inevitable; also, the status of Community law in national law touches upon the sovereignty of the Member States There is no explicit legal basis for the principle of supremacy of Community law in the founding Treaties; rather, supremacy was developed by the ECJ as one of the fundamental principles of the Community legal order Article I-6 of the Constitutional Treaty would have provided an explicit legal basis for the principle of supremacy, but this was not incorporated into the Lisbon Treaty; Declaration 17 states: The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

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The abolition of the pillar structure and the unification of the EU legal order raises questions as to whether or not supremacy now covers the whole of EU law

(2) Establishing the principle of supremacy -

The origins of the principle of supremacy can be traced back to Case 26/62, Van Gend en Loos, where the Court concluded that the Community constitutes a new legal order in international law, implying that its legal system went beyond ‘ordinary’ international law The full implications were set out in Case 6/64, Costa v. ENEL: o national law enacted subsequent to the accession of a Member State to the Community could not be given effect if and so far as it was contrary to Community law

Case 6/64, Costa v. ENEL [1964] ECR 585, at 593–594 The Italian Government submits that the request of the Giudice Conciliatore is 'absolutely

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inadmissible', inasmuch as a national court which is obliged to apply a national law cannot avail itself of Article 177. By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the discrimination prohibited by Article 7. The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the Treaty grants the States the right to act unilaterally, it does this by clear and precise provisions [...] The precedence of Community law is confirmed by Article 189, whereby a regulation 'shall be binding' and 'directly applicable in all Member States'. This provision, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over Community law. It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. Consequently Article 177 is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the Treaty arise. Four strands of reasoning: a) Supremacy flows from direct applicability since Community law becomes an integral part of domestic law as Community law (ie is not transformed into a rule of domestic law which could then be overruled by another rule of domestic law) b) Article 189 EC [now Article 288 TFEU] c) Limitation of sovereignty d) Uniformity of Community law

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(3) The Scope of the Principle -

All forms of EU law (primary law, general principles, secondary law, international agreements) benefit from the principle of supremacy

Constitutional laws -

The ECJ has confirmed that Community law prevails not only over ordinary domestic law, but also over constitutional provisions of the Member States

Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125 3. Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure. 4. However, an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. 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. It must therefore be ascertained, in the light of the doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system. Although Community law prevails over all rules and concepts of domestic law, irrespective of their status under the law of the Member State, the validity of a Community law measure can be judged in the light of Community law itself by the Court: the Court itself will therefore guarantee that Community law conforms to fundamental rights (see Solange I case below) International agreements of the Member States - Following their accession to the Community/EU, the Member States may not conclude international agreements to the extent that this conflicts with Community/Union law o (Case 22/70, Commission v Council (ERTA) [1971] ECR 263) - However, subject to certain limitations, the Treaty safeguards the position of international agreements concluded before the accession of a Member State Article 351 TFEU The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member

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State on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibility established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. Article 351 TFEU only safeguards the rights of third countries and does not apply between the Member States themselves (Case 10/61, Commission v. Italy [1962] ECR 1, at 10) -

The scope of Article 351 TFEU is illustrated by the ‘open skies’ cases

Case C-466/98, Commission v. UK [2002] ECR I-9427 29 As the final recital in its preamble states, the Bermuda II Agreement was concluded 'for the purpose of replacing' the Bermuda I Agreement, in particular in order to take into account the development of traffic rights between the Contracting Parties. It thus gave rise to new rights and obligations between those parties. In those circumstances, it is not possible to attach to the Bermuda I Agreement the rights and obligations which, for the United Kingdom and the United States of America, have flowed from the clause in the Bermuda II Agreement concerning the ownership and control of air carriers since the entry into force of that latter agreement. Article 351 TFEU requires the Member States to take all appropriate steps to eliminate any incompatibility established between their pre-accession agreements and the Treaties, including by withdrawing from the preaccession agreement if no other solution is available Case C-62/98, Commission v. Portugal [2000] ECR I-05171 49 Furthermore, although, in the context of Article 234 of the Treaty, the Member States have a choice as to the appropriate steps to be taken, they are nevertheless under an obligation to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty. If a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot therefore be excluded. The ECJ held that even a theoretical incompatibility, that is one which has not yet arisen in practice, must be eliminated C-205/06, Commission v. Austria [2009] ECR I-1301 35. The provisions of Articles 57(2) EC, 59 EC and 60(1) EC confer on the Council the power to restrict, in certain specific circumstances, movements of capital and payments between Member States and third countries. 36. In order to ensure the effectiveness of those provisions, measures restricting the free movement of capital must be capable, where adopted by the Council, of being applied immediately with regard to the States to which they relate, which may include some of the States which have signed one of the agreements at issue with the Republic of Austria. 37. Accordingly, those powers of the Council ... reveal an incompatibility with that agreement where, first, the agreement does not contain a provision allowing the Member State concerned to exercise its rights and to fulfil its obligations as a member of the Community

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and, second, there is also no international-law mechanism which makes that possible. 38. Contrary to what is contended by the Republic of Austria, the measures put forward by it and which, in its view, are such as to enable it to fulfil its Community obligations do not appear to guarantee that this will be the case. 39. In the first place, the periods of time necessarily involved in any international negotiations which would be required in order to reopen discussion of the agreements at issue are inherently incompatible with the practical effectiveness of those measures. 40. In the second place, the possibility of relying on other mechanisms offered by international law, such as suspension of the agreement, or even denunciation of the agreements at issue or of some of their provisions, is too uncertain in its effects to guarantee that the measures adopted by the Council could be applied effectively. 42. ...it is common ground that, in the cases referred to by the Commission, the Republic of Austria has not taken any steps, within the period prescribed by the Commission in its reasoned opinion, with regard to the third countries concerned, designed to eliminate the risk of conflict with measures liable to be adopted by the Council under Articles 57(2) EC, 59 EC and 60(1) EC which may arise from the application of the investment agreements concluded with those third countries. Significant difficulties have arisen concerning the implementation of anti-terrorism sanctions adopted by the UN Security Council; whereas in the Kadi case the CFI held that implementing measures adopted by the Community must be upheld, the ECJ declared that such measures cannot escape judicial review by the Community courts, as an international agreement (the UN Charter) cannot affect the autonomy of the Community legal order Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council and Commission [2008] ECR I-6351 282. It is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has, moreover, already held to form part of the very foundations of the Community [...] -

The Court simply ignored the existence of Article 351 TFEU, which applies to the UN Charter; o one explanation for this is that this way the Court sidestepped the obligation of the Member States to eliminate any incompatibility between the Treaty and the UN Charter (which at worst would require the Member States to withdraw from the Charter); o Kadi also demonstrates that the protection of fundamental human rights is of the highest importance in the EU legal order

Consequences of Supremacy - Giving effect to supremacy creates serious problems for national courts as often only the highest courts have the authority to declare a domestic law invalid Case 106/77, Simmenthal [1978] ECR 629 13 The main purpose of the first question is to ascertain what consequences flow from the direct applicability of a provision of Community law in the event of incompatibility with a

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subsequent legislative provision of a Member State. 14 Direct applicability in such circumstances means that rules of Community law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force. 17 Furthermore, in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but — in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States — also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions. 18 Indeed any recognition that national legislative measures which encroach upon the field within which the Community exercises its legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member States pursuant to the Treaty and would thus imperil the very foundations of the Community. 21 It follows from the foregoing that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. 22 Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law. 23 This would be the case in the event of a conflict between a provision of Community law and a subsequent national law if the solution of the conflict were to be reserved for an authority with a discretion of its own, other than the court called upon to apply Community law, even if such an impediment to the full effectiveness of Community law were only temporary. The ECJ later clarified that ‘setting aside’ meant ‘disapplying’ the conflicting national rule Joined Cases C-10/97 to C-22/97, Ministero Delle Finanze v. IN.CO.GE.'90 Srl and Others [1998] ECR I-6307 18. The Commission points out that, in its judgment in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629, the Court held, inter alia, that the provisions of the Treaty and the directly applicable measures of the institutions have the effect, in their relationship with the domestic law of the Member States, not only of rendering automatically inapplicable any conflicting provision of national law in force but also of precluding the valid adoption of new national legislative measures which would be incompatible with Community provisions. From this, the Commission infers that a Member State has no power whatever to adopt a fiscal provision that is incompatible with Community law, with the result that such a provision and the corresponding fiscal

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obligation must betreated as non-existent. 19. That interpretation cannot be accepted. 21. It cannot [...] be inferred from the judgment in Simmenthal that the incompatibility with Community law of a subsequently adopted rule of national law has the effect of rendering that rule of national law non-existent. Faced with such a situation, the national court is, however, obliged to disapply that rule, provided always that this obligation does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law (see Case 34/67 Lück v Hauptzollamt Köln-Rheinau [1968] ECR 245). Procedural Rules - The duty to ensure the full effectiveness of Union law requires national courts to supply a remedy which is not available under national law; this was illustrated by the Factortame cases Case C-213/89, The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and Others [1990] ECR I-2433 11 In its judgment of 10 March 1989, the Divisional Court of the Queen's Bench Division : (i) decided to stay the proceedings and to make a reference under Article 177 of the EEC Treaty for a preliminary ruling on the issues of Community law raised in the proceedings; and (ii) ordered that, by way of interim relief, the application of Part II of the 1988 Act and the 1988 Regulations should be suspended as regards the applicants. 12 On 13 March 1989, the Secretary of State for Transport appealed against the Divisional Court's order granting interim relief. By judgment of 22 March 1989, the Court of Appeal held that under national law the courts had no power to suspend, by way of interim relief, the application of Acts of Parliament. It therefore set aside the order of the Divisional Court. 21 It must be added that the full effectiveness of Community law would be [...] impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule. However, not all procedural rules are overridden by Community law C–234/04, Kapferer v. Schlank & Schick GmbH [2006] ECR I-2585 19 By Question 1(a), the referring court asks essentially whether, and, where relevant, in what conditions, the principle of cooperation arising from Article 10 EC imposes on a national court an obligation to review and set aside a final judicial decision if that decision should infringe Community law. 20 In that regard, attention should be drawn to the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question [...]

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21 Therefore, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue [...] (4) National Responses In the UK, international agreements have effect in domestic law only if they have been incorporated by an Act of Parliament; the European Communities Act 1972 incorporates the EU Treaties and provides for the direct applicability and effect of EU law European Communities Act 1972 1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies. 2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision— a. for the purpose of implementing any EU obligation] of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or b. for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid. ECA 1972 section 3 provides that judicial notice will be taken of Union law - Case-law on the principle of supremacy is not entirely consistent; English courts have adopted a pragmatic approach that seeks to avoid conflicts Macarthys Ltd. v Smith [1979] ICR 785 (Court of Appeal) (per Lord Denning), at 788–790 Suppose that England passes legislation which contravenes the principle contained in the Treaty, or which is inconsistent with it, or fails properly to implement it. There is no doubt that the European Commission can report the United Kingdom to the European Court of Justice: and that court can require the United Kingdom to take the necessary measures to implement article 119. [...] It is unnecessary, however, for these courts to wait until all that procedure has been gone through. Under section 2(1) and (4) of the European Communities Act 1972 the principles laid down in the Treaty are “without further enactment” to be given legal effect in the United Kingdom: and have priority over “any enactment passed or to be passed” by our Parliament. So we are entitled — and think bound — to look at article 119 of the Treaty because it is directly applicable here: and also any directive which is directly applicable here: see Van Duyn v. Home Office [1975] Ch. 358. We should, I think, look to see what those provisions require about equal pay for men and women. Then we should look at our own legislation on the point — giving it, of course, full faith and credit — assuming that it does fully comply with the obligations under the Treaty. In construing our statute, we are entitled to look to the Treaty as an aid to its construction: and even more, not only as an

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aid but as an overriding force. If on close investigation it should appear that our legislation is deficient — or is inconsistent with Community law — by some oversight of our draftsmen — then it is our bounden duty to give priority to Community law. Such is the result of section 2(1) and (4) of the European Communities Act 1972. I pause here, however, to make one observation on a constitutional point. Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation. As I said in Blackburn v. Attorney-General [1971] 1 W.L.R. 1037, 1040: “But, if Parliament should do so, then I say we will consider that event when it happens.” Unless there is such an intentional and express repudiation of the Treaty, it is our duty to give priority to the Treaty. In the present case I assume that the United Kingdom intended to fulfil its obligations under article 119. The supremacy of EU law over conflicting provisions of Acts of Parliament was confirmed by the House of Lords in the Factortame cases Regina v. Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 2) [1991] 1 AC 603, (per Lord Bridge) at 658–659 Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty (Cmnd. 5179-II) it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy. -

Factortame nevertheless leaves open the question of what happens if Parliament were to expressly contradict a provision of EU law: in such a case, the courts are likely to follow the Act of Parliament (see Macarthys Ltd. v Smith); another unresolved difficulty concerns the question whether a later Act of Parliament can be said to repeal or amend the ECA 1972, given that all Acts of Parliament are equal in weight and status Thoburn v. Sunderland City Council [2002] EWHC 195 (Admin) 59 [...] Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express

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repeal. [...] The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional doctrine of sovereignty. If is to be modified, it certainly cannot be done by the incorporation of external texts. The conditions of Parliament's legislative supremacy in the United Kingdom necessarily remain in the United Kingdom's hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle. 62 [...] In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental [...] And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998 . The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute. 63 Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual — not imputed, constructive or presumed — intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. [...] A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute. -

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The German Federal Constitutional Court has engaged in a dialogue with the ECJ on fundamental rights; o in Internationale Handelsgesellschaft (Solange I), 2 BvL 52/71 [1974] 2 CMLR 540, the Constitutional Court held that the German authorities should not apply rules of Community law which infringed basic rights as protected by German law as long as (‘solange’) The Community did not itself provide adequate protection of fundamental rights In Wünsche Handelsgesellschaft (Solange II), 2 BvR 197/83 [1987] 3 CMLR 225, the Constitutional Court held that the protection of fundamental rights in the Community had reached a degree where it was essentially comparable to the standard set by the Basic Law and therefore declared that it would no longer exercise its jurisdiction to review secondary Community law by the standards of the fundamental rights guaranteed by the Basic Law

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Questions What is the principle of supremacy? How has the ECJ justified the principle? What rules of domestic law are caught by the principle? What action does supremacy require on the part of domestic courts? Does supremacy override procedural rules of domestic law? How have the Member States reacted to the principle of supremacy? How is supremacy implemented in the UK? What difficulties does the principle of Parliamentary sovereignty raise? Would English courts always give effect to the principle of supremacy? If not, why and when not? What did the German Federal Constitutional Court decide in the Solange (I and II) cases?

Basic Reading Craig and de Búrca, EU Law (5th edn, 2011), Ch. 9 ('The Relationship between EU Law and National Law: Supremacy'). Recommended Reading Alter, ‘Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice’ (1998) 52 International Organization 121. Hartley, The Foundations of European Union Law (7th edn, 2010), Ch. 8 ('Supremacy and Sovereignty: the Union and the Member States'). European Scrutiny Committee, ‘Tenth Report The EU Bill and Parliamentary Sovereignty’, 7 December 2010, HC 633-I. [http://tinyurl.com/lj8hw8r]

Further Reading Lanier, ‘Solange, Farewell: The Federal German Constitutional Court and the Recognition of the Court of Justice of the European Communities as Lawful Judge', (1988) 11 Boston College International Law and Comparative Law Review 1. Groussot, ‘Supr[i]macy { la Française: Another French Exception?’, (2008) 27 Yearbook of European Law 89. Kwiecie., ‘The Primacy of European Union Law over National Law Under the Constitutional Treaty’, (2005) 6 German Law Journal 1479. Albi, ‘Supremacy of EC Law in the New Member States: Bringing Parliaments into the Equation of ‘Co-operative Constitutionalism’, (2007) 3 European Constitutional Law Review 25. de Witte, ‘Direct Effect, Supremacy, and the Nature of the Legal Order’ in Craig and de Búrca (eds), The Evolution of EU Law (2nd edn, 2011) 323. Preliminary Rulings

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By the end of this session students should be able to: – Understand the basic principles of Art.267 – Identify circumstances in which a referral would be refused.

EU Rights Much of EU Law is directly effective, and will, under the principle of primacy, take precedence over any conflicting rules of national law. It thus forms an important source of rights and obligations for both states and individuals. Rights Against Whom?

The Institutions of the Union, who, in their lawmaking or administrative capacity may have acted or failed to act in breach of EU law

Member States, which, in carrying out or failing to carry out their obligations under the treaties or secondary legislation, may have acted in breach of EU law

Individuals, who in failing to comply with their obligations under the treaties or secondary legislation may have acted in breach of EU Law

Rights against the Institutions of the Union: - Breach of rights = can take action against them. Rights against Member states: - Action will result in remedies. Rights against Individuals Art 267 TFEU (Interpretation) The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of the Treaties; b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Note – use of word ‘interpretation’ ECJ is not an appellant court – courts in preliminary rulings are about interpretation of EU law. ECJ decides how to implement that law based on the interpretation, not an appeal court. Art 267 (Duty to Refer) 2. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. • National Courts refer to the ECJ

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Up to national courts – individuals cannot demand through this article that your case goes to the ECJ. National courts decide whether to refer – partnership:

Art 267 (No Judicial Remedy) 3. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. o If there is no judicial remedy under national law, they have an obligation to refer – this creates problems because what does it mean that there is no judicial remedy?  Does it mean that an appeal has not been allowed or that there is no remedy?  Or that it is a magistrates court and thus is not worth enough money to send higher up the chain?  Many issues. Art 267 (Custody Haste) 4. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay No Power to Decide • The Court of Justice has no power to decide the issue before the national court, – Merely interprets the matter of Union law involved, – or decides on the validity of the act in question, • Normally be sufficient to establish whether an infringement of EU law has occurred. • The national court may then supply the appropriate remedy. Interpretation, NOT decision. Historical Importance of Art 267 • Original purpose to ensure the correct and uniform application of Union law. – Citizens access to Art 267 (through national courts) pushed the development of direct effect and supremacy in Van Gend and Costa v ENEL. • The ECJ decide that the EU treaties are more than an international agreement, hence the use of privacy and supremacy. This process has been useful to individual citizens (compare to Art 258 and 263) where individuals should be able to apply straight the the EU but the ECJ have created such onerous restrictions to those who can apply that they become severely ineffective. – More than an ordinary international agreement – Useful to individual citizens – cf. Art 258 and 263 The Generous Approach of the ECJ • The ECJ originally had an open door approach to Art 267 references. – Secured uniformity • Ensure that the Art has been applied properly across all MS. – And gave greater opportunities to develop principles that secured rights for individuals. (preliminary ruling is effectively a question to ECJ by nationals) • Has rephrased questions • Has raised additional points Two Questions to ask to see if Article 267 is applicable: 1. Is the Referring Body a Court or Tribunal? Art 267 applies to ‘any court or tribunal.’ How do we know if something is a body, court or tribunal? ECJ decided that it is dependant on a number of factors:

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– – – – – –

Statutory origin Permanence • Is it a ‘one off’ or here to stay? Inter partes procedure • How are the relationships formed between the parties? Adversarial court? Compulsory jurisdiction • What does it have jurisdiction over? What powers does the court have? The application of rules of law • Does it/how does it apply rules of law? Independence of the body making the reference • Separate to the parties that are interested?

Broekmeulen (case 246/80) • Dutch professional medical body (equivalent to GMC in UK) – “In the practical absence of an effective means of redress before the ordinary courts, in a matter concerning the application of Union law, the appeal committee, which performs its duties with the approval of the public authorities and operates with their assistance, and whose decisions are accepted following contentious proceedings and are in fact recognised as final, must be deemed to be a court or tribunal of a Member State for the purpose of [Article 267]” • Wide interpretation of what could be a court or tribunal • There were no means of appeal here. 2. Is the Question a Matter of Union Law? • The Court is only empowered to give rulings on matters of EU law. It has no jurisdiction to interpret domestic law, nor to pass judgment on the compatibility of domestic law with Union law. – The court will give abstract interpretations. • This ensures the division of competence between EU and national law. • Competence – want the division of the sovereignty of the national state and the competence of the EU. • Goes some way to delimiting that division of EU and national state. The Court Must Not Interfere with Matters of National Court Discretion • What to refer, when to refer and how to refer are left to the discretion of national judges. – The ECJ Court will interpret the relevant issues (even if they are not raised!) • Asks for the facts to be established and questions of national law settled before they are referred. • Facts of the case should be agreed upon before a preliminary ruling is made – don’t want an impact or outcome of the case if it is still ongoing. Validity of EU Measures • The national court can ask whether a union measure is valid. – The ECJ has been receptive and has ruled measures invalid. – National courts, in contrast, do not have the power to declare EU Acts invalid. • They simply cannot overrule or override EU acts – only for ECJ to act. The Practical Realities of Interpretation The lines between matters of Union law and national law, application and interpretation are easier to draw in theory than practice. An interpretation of Union law may leave little doubt as to the legality of a national law and little choice to the national judge in matters of application if they are to comply with their duty to give priority to Union law. o If the EU argue an interpretation as X and the national court must follow this ruling – no room for manoeuvre. They must comply with what the ECJ say.

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o

In reality, the ECJ are making decisions on some level however they should only really be interpreting. On a practical level this thus becomes a decision.

Arsenal FC v Reed [2002] ALL ER 180 • Concerned the Trademark Directive • The ECJ used the phrase ‘in circumstances such as those in the present case’ – giving the court little freedom in its decision – The court held that the ECJ had overstepped their competence and thus were not held by its decision. – Overruled by the Court of Appeal [2003] 2 CMLR 25 • CofA said that the EU were correct in their interpretation of the Treaties however should not have given such a limiting guidance which in practicality becomes a decision. • Only able to interpret.

Circumstances which may lead the courts to Refuse to give a ruling: Refusal to Give a Ruling • ‘Artificial Proceedings’ – Foglia v Novello (No 1) (case 104/79) • Wine producer selling to exporter (both Italian). Contract stated that the producer would not bear the cost of any duties levied by the French. • Argument that the French law was in valid and should have been got rid of. • Preliminary ruling on the legality of Union law of the illegal duties imposed by the French. • The ECJ would not give advisory opinions on general or hypothetical questions • Argue that this case has been made completely artificially – JUST to test the French law. • Thus the ECJ declined to comment on this. • The case must relate to a cross-border issue and not a purely internal situation. • Some exceptions: – To avoid discrimination (Salzmann C-300/01) – Where Union law has been transposed to a non-Union context (purely internal situation which has been taken outside of its area) (Leur Bloem C-28/95) – To clarify provisions (Dzodzi v Belgium C-297/88) • A preliminary ruling must be ‘objectively required.’ – Company being wound up – answers to the question would not be applied (Monin Automobiles – Maison du Deux-Roues C-428/93) • Company was wound up so the answer to the question would not even be required • Participant in the dispute is not going to exist at the end of the case so any interpretation would not be implemented because one of the parties no longer exists – ruling would have no effect. • Waste of ECJ’s time – no ruling given. • The parties must challenge Union measures directly under Art 263 TFEU if they have standing. – Article 263 must be used rather than 267. – If they are outside of the deadline for use of Art 263 (2 months to bring the case) then maybe fall under 267 howeveer, courts are reluctant. – Out of 2 month deadline for Art 263 (TWD Textilwerke GmbH v Germany C-188/92) – Less likely to apply if standing is not obvious (R v Intervention Board for Agriculture C-241/95) • Standing is not obvious – can apply under Art 267. National Courts and the Reference Procedure • It is up to the national court judge to refer to the ECJ. • The parties cannot compel a reference. – Cannot ask for a reference and force the institution to use EU law. • Reliant upon cooperation with national court judges.

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Makes national courts a part of EU law. Cooperation – not a system of appeal, it is a system of preliminary ruling. Bilateral relationship (both courts are effectively equal however one just happens to be more specialised in EU law and one more specialised in national law) National courts therefore become beacons of EU law – they are subsumed into this system.

Problem Question • The UK Court of Appeal have referred an important question of EU law to the ECJ. The dispute is between a UK wine seller and a German exporter. The German wine exporter’s company has recently been wound up. The ECJ have come to a decision that they feel MUST be enforced. – Advise the Court of Appeal – UK court – Is it an appropriate authority here? Yes • Depends on whether the case cant be sent up to the supreme court or not. • UK court appropriate as it is a domestic case. The case can later be sent up to the ECJ – Is the referral voluntary? so no question of MUST under 267(3). • It is the job of the Court of Appeal to decide whether the case goes to ECJ under article 267(3). – The German wine exporter was recently ‘wound up’: • ECJ will refuse to give a ruling– not objectively required • ‘A preliminary ruling must be ‘objectively required.’ • Company being wound up – answers to the question would not be applied (Monin Automobiles – Maison du Deux-Roues C-428/93) • Company was wound up so the answer to the question would not even be required • Participant in the dispute is not going to exist at the end of the case so any interpretation would not be implemented because one of the parties no longer exists – ruling would have no effect. • Waste of ECJ’s time – no ruling given. – ECJ can only interpret the law and not give decision on it. No ruling given. – Not purely internal – Possibly not ‘objectively required’ (Monin Automobiles – Maison du Deux-Roues C-428/93) – Court can only interpret not DECIDE cases Arsenal FC v Reed [2002] ALL ER 180

Reading • Basic Reading – Craig and De Burca, chapter 13 • Recommended Reading – Foglia v Novello (No 1) (case 104/79) – Arsenal FC v Reed [2002] ALL ER 180 • Further Reading – Bobek, M, ‘Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice’ (2008) 45 CMLRev 1611

Preliminary Rulings 2

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By the end of this session students should be able to: – Identify the circumstances in which a national court must refer under Art. 267.

When Must a National Court Refer? • Art. 267(3), where a question concerning interpretation is raised ‘in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.’ • Most of the time a choice • Can usually be appealed internally • Only required when the appeal process has been exhausted domestically • Sought to prevent a build up of contradictory national law • Abstract theory – courts and tribunals who are never subject to appeal (The Supreme Court, the Conseil d'État). • Concrete theory – court whose decisions in the case in question are not subject to appeal. • Costa v ENEL (case 6/64) • Italian Magistrates Court (Giudice Concilatore) • No right of appeal because the amount of money to small • Obiter supported the concrete theory • Lyckeshog (case C-99/00) • Where there is a right for a party to seek to appeal against the decision under challenge, this is not a final court. • If there is no right of appeal against the decision then that court is a ‘final court’ regardless of its status in the judicial hierarchy. • Any court can refer as long as there is no right to appeal nor any obligation to refer. • • ***Köbler v Austria (case C-224/01) • The ECJ held that a failure on the part of a court of last resort to comply with the obligation to refer a question under Art. 267(3) might render the Member State of whose judicial system it forms a part, liable in damages to an individual who had as result of refusal to refer, been deprived of his or her lawful rights under Union law. • The court in questions (Supreme court) doesn’t refer under their obligations of 267(3), they fail to refer. As a result, the EC J say the member state from which the supreme court falls, is liable in damages. • Starts to move the ECJ into an appellant court however this decision starts to push this agenda. When Does a ‘Question’ of Union Law Arise? • Is a ruling necessary in order for the national court to give judgement? – The question must raise issues of doubt as to the meaning of Union law – The ECJ has been keen to encourage references in order to ensure uniformity but also risks being overloaded, thus diminishing judicial protection through delays. • Must raise problems within union law – We see this tension within the ECJ – they want to ensure uniformity and proclaim the importance of EU law however at the same time there are many delays in getting cases to court – about 36 months waiting time to get a case heard by the ECJ. • Legal costs are thus incredibly high. • Problematic as to who has access to this.

Previous Rulings • Where there has been a previous ruling on a point of Union law there will be no need for a national court to refer the same point again. (Da Costa cases 28-30/62) • Movement towards a state of Supremacy for the ECJ – starting to create a precedent. • The court retains the right to depart from its previous rulings.

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• •

Where the matter involves the legality of a Union measure, the national court must refer a question to the ECJ as it is the only court that can pronounce on the validity of Union measures. (Gaston Schul case C461/03) • Validity differs from interpretation • Validity refers to a specific union act. • Interpretation refers to a national law and how that relates to a union act. • Questions of validity should always be referred • Because national courts do not have the ability o rule on whether EU law is valid. Not able to strike out EU law. Only ECJ can do this. Movement therefore to an appellant court – worrying when you look at the treaties. Adopting a model of supremacy.

Acte Clair • If a meaning of a provision is clear, no question of interpretation arises (CILFIT Srl 283/81). – Therefore up to national courts to apply union law – no need to refer to ECJ • System of precedent – Allows the highest courts some latitude in the decision to refer. • Supreme courts enjoy this because they like the power. – In their decisions courts must take into account: • The specific characteristics of EU law • Its particular difficulties • The risk of divergence of judicial interpretation • Also must consult each of the different language versions. – Very onerous tasks as need to consult every single different language version of a particular union act. – requires many people. – While there is latitude, it is still restrictive because of the need for this onerous task. – Potential for this doctrine to be used incorrectly/problematically however EU and ECJ have tried to limit that by having a requirement to look at every single language version. • Important because they want the national court to use EU law, however at same time need to ensure uniformity and conformity. • Also ask whether the question is relevant to the case Is the Question Relevant to the Case? • CILFIT – no obligation to refer questions relating to EU law that were not relevant to the case before the national court. – Potential for misuse? • Are there going to be cases declined that should have been referred ? • Critical approach to article 267 – Could decline to refer cases that should be referred National Courts can Ignore National Rules of Precedent to Refer Cases • The object of preliminary rulings procedure, was to ensure that in all circumstances the law was the same in all Member States. • No provision of domestic law can take away the power provided by Art. 267. • Lower courts must be free to make a reference if it considers the superior court’s ruling could lead it to give judgment contrary to Union law • (Rheinmühlen-Düsseldorf case 146/73). • Can overrule your own national precedent – see Costa decision • Completely overrules precedential systems. • In part due to the reliance on the bilateral system – interpretation. • More we move away from that, huge difficulties are created – supremacy v bilateral agreements. How should non-final courts exercise their discretion to refer? • HP Bulmer Ltd v J Bollinger SA [1974] Ch 401 – Lord Denning

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A referral would only be necessary if it was ‘conclusive’ to the judgment. Even then it would not be necessary if: • The ECJ had already given judgment on the question • The matter was reasonably clear and free from doubt – Much broader interpretation than CILFIT. – ‘Reasonably clear’ – very vague. • Don’t have to refer to the ECJ • Complete contradiction to what the ECJ say – they say has to be ‘specifically’ or ‘absolutely’ free from doubt.

•

Contrast with Commissioners of Customs and Excise v Samex ApS [1983] 3 CMLR 194. – Bingham J - Takes a more grounded approach to Denning. • The ECJ have a panoramic view of EU law that a national judge would find impossible to match. • The more difficult and uncertain the issue of EU law, the more likely an appeal. • For reasons of time and cost it may be better to refer early. – Bingham taking a much more pro European stance here. – ECJ have a panoramic view of EU law – comprehensive understanding of EU law. – Reference to time and cost – expensive and time consuming to refer to ECJ. • Important to refer early so as to save time and money – makes an appeal less likely. – Pro European stance.

•

It may be necessary to refer before all the facts are found if important financial interests are at stake or if it would effect the material outcome of the case – (R v Henn [1981] AC 850) • Case about pornography. – May be necessary to refer before all facts are found. • Could be necessary if there re important financial interests are at stake – almost against ECJ understandings.

•

Early referral if a number of similar cases are pending (Polydor Ltd v Harlequin Record Shops [1980] 2 CMLR 413) – If there are many similar cases – test case, joint cases etc affecting many, early reference could be important. Non final courts may be under obligation to refer early.

•

In criminal trials better to be decided at national level and only reviewed if necessary (R v Henn) – ECJ are traditionally unwilling to be involved in criminal trials however primarily interests are in economic development. – Here, facts of case should be established before going to ECJ

What is the Temporal Effect of a Ruling from the ECJ? • Interpretations given by the ECJ can go beyond the proceedings that led to the reference and have social and economic consequences. • Fall out from these cases – tend to set aside domestic legislation etc • Exceptionally, in some cases the ECJ have limited the temporal effects of its rulings to be ‘prospective’ and not affect prior legal relations. • Exceptional – normally if ECJ make decision it affects all past law too. Occasionally it will be limited to prospective cases. • Proceedings have consequences outside of that case – broader economic and social responsibilities. • Also might have effect outside of country it is aimed – other countries may choose to adopt this. • More generally, a ruling under Art. 267 is binding on the individual case. • Under Art 4(3) TEU Member States have an obligation to ‘take all appropriate measures… to ensure fulfilment of the obligations arising out of the Treaties or resulting from acts of the institutions of the Union’ the ruling should also be generally applied (by other MS’s).

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Binding in a particular case, might have effect in other states also. May be obligations to other member states.

Rulings involving interpretation are generally retrospective in effect. • Generally rulings are retrospective as they are a clarification of existing law. – Can take effect from a specified future date • (Test Achats c-236/09) • Car insurance and discrimination law. • Took time to implement – had to provide a specified future date from which this takes effect. – Or from the date the case was lodged • (Defrenne v Sabena (No. 2) case 43/75) • Decision was applicable from the case the case was lodged/applied for preliminary rulings from the ECJ. • Helped to protect employers over equal pay. • Exceptional • Decided that it was from a particular date it will take effect – could not back log equal pay – exceptional - More likely that cases will have retrospective applicability. o EU law should always have been interpreted this way • The court is more likely to be prepared to limit the effects of a ruling on validity than one on interpretation. – Important – limit the effects on a ruling of validity as it is of no fault of a particular state but fault of the EU. – Interpretation – less likely to be limited as it is the fault of a particular state. •

Problem Question The UK Supreme Court have been asked by Hodor to make a preliminary ruling under Art.267 for interpretation. The issue has previously been decided upon by the ECJ but a new regulation may have altered this position. The Court decide that the issue is obvious despite some discrepancies in the German language version of the regulation. They decide not to refer under the doctrine of Acte Clair. Advise Hodor Check List • • • • •

Is the referring body a court or tribunal? Is the question a matter of union law? Does the court have a duty to refer under Art. 267(3)? Has a ‘question’ of Union law arisen? Has the court specified a time limit?

Problem Question • The court is an appropriate body to refer under Art. 267. – The Supreme court is the last Court of Appeal – They may be compelled to refer under Art.267 (3) • If the matter has been resolved previously by the ECJ there is no need to refer to the ECJ. The ECJ can depart from their own precedent however. • The Acte Clair doctrine must be used with reference to: – The specific characteristics of EU law – Its particular difficulties – The risk of divergence of judicial interpretation – Also must consult each of the different language versions. Conclusion • Success dependent on collaboration between the ECJ and national courts.

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Individuals cannot compel referral. Final courts should always appeal if in doubt.

Reading • Basic Reading – Craig and De Burca, chapter 13 • Recommended Reading – CILFIT Srl (case 283/81) – Köbler v Austria (case C-224/01) • Further Reading – Arnull, A, ‘The Law Lords and the European Union: Swimming with the Incoming Tide’ (2010) 35 ElRev 516

Review of Legality Judicial Review • One of the fundamental means by which the actions of any legislature can be controlled is the process of judicial review. This enables a court to consider whether a legally binding measure violates procedural or

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substantive rules of law and should therefore be rendered inapplicable. Art. 263 TFEU provides the mechanism for a direct challenge to the legality of Union Acts. Article 263(1) • The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects visà-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. Article 263(4) • Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. Article 263(6) - The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be Four Main Elements: 1. The types of act that are subject to review 2. The bodies that may bring an action for review 3. The time within which an action may be brought 4. The grounds on which such an action may be based Reviewable Acts • Under Art. 263 three types of act are reviewable 1. Legislative Acts 2. Regulatory Acts 3. Acts

1.

Legistlative Acts Art 289(3) defines legislative acts as legal acts adopted by legislative procedure

Regulations

Directives Decisions

2.

Regulatory Acts Inuit Tapiriit Kanatami and 18/10)

Others v European Parliament and Council (case T-

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“…it must be held that the meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts.  Recommendations, opinions and resolutions 3.

Acts In Inuit ‘acts’ were held by the ECJ to encompass any act addressed to a natural or legal person and any act whether legislative or regulatory, which is of direct and individual concern to them (including legislative and regualtory acts which require implementing measures).

Reviewable Acts Must Produce Legal Effects • Commission v Council (Re European Road Transport Agreement) (case 22/70) – Council resolutions may be ‘acts’ – The measure was a Council resolution setting out the position to be taken by the Council in the preparation of the road transport agreement. The Commission sought to challenge this resolution, since it considered the matter lay outside the Council’s sphere of competence. The action was declared admissible. • Letters sent by the Commission (that are not decisions) can be reviewable ‘acts’. – Re Noordwijk’s Cement Accord (cases 8-11/66) – France v Commission (Re Pensions Fund Communication) (case C-57/95) Locus Standi – Who may bring an Action? • Privileged • Semi-privileged • Non-privileged Broad Locus Standi ensures adequate control of the legislature Narrow Locus Standi ensures that where an applicant is wholly unconnected they should not be able to challenge validity. As this would reduce legal certainty and effect the courts workload. 1.

Privileged Applicants

Member States

The European Parliament

The European Central Bank

2.

Semi-

The Court of Auditors

Who can Challenge any binding Act under Art 263?

The Council

The Commission

Confined to reviewing acts of institutions that are necessary for the protection of their prerogatives

The Committee of the Regions

privileged Applicants

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3.

Non-Privileged Applicants A natural or legal person is entitled to challenge o An act addressed to that person, or which is of direct and individual concern to them. o A regulatory act which is of direct concern to them and does not entail implementing measures.

Direct Concern • A measure will be of direct concern where it: – Directly affects the legal situation of the applicant – Leaves no discretion to the addressees of the measure – Who are entrusted with its implementation NV International Fruit Company v Commission (cases 41-44/70) • The Community adopted a regulation which affected the importation of apples during a set period of time. – The Commission decided to issue licences on the basis of information from MS’s about the previous weeks need for licences. – “The measure whereby the Commission decides on the issues of the import licences thus directly affects the legal position of the parties concerned.” Municipality of Differdange v Commission (Case 222/83) • Commission authorised Luxembourg to grant aid to steel firms as long as they reduced their capacity. The municipality argued direct concern due to a subsequent reduction of tax. – “It follows that the contested Decision left to the national authorities and undertakings concerned such a margin of discretion with regard to the manner of its implementation and in particular with regard to the choice of factories to be closed, that the Decision cannot be regarded as being of direct and individual concern to the municipalities with which the undertakings affected, by virtue of the location of their factories, are connected.” Individual Concern • Previous legislation was willing to look beyond the form of the measure to its substance (was a regulation really a decision?) • Current legislation is more formalistic. Plaumann & Co v Commission (Case 25/62) • The Commission refused the request of the German Government to suspend the collection of duties on clementine's. – “Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. In the

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present case the applicant is affected by the disputed Decision as an importer of clementine's, that is to say, by reason of a commercial activity which may at any time be practiced by any person and is not therefore such as to distinguish the applicant in relation to the contested Decision as in the case of the addressee.” **The Plaumann Test • Applicants can only be individually concerned by a decision addressed to another if they are differentiated from all other persons, and by reason of these distinguishing features singled out in the same way as the initial addressee. – The applicant failed because it practiced a commercial activity that could be carried out by any person at any time. Problems with Plaumann • Limited number of traders engaged in the activity, The fact that people ‘could’ do it doesn’t mean they will. • Only applies retrospectively because then groups can be defined. • The test seems to be applied from some future ill-defined date rather than from the date the application was made. Open and Closed Categories • An open category is regarded as one where the membership is fixed at the time of the decision. • A closed category is one in which it is fixed. Problems with Open and Closed Categories • Ignores the practical realities of people joining groups. • Any decision with a future impact becomes unchallengeable. Reading • Basic Reading – Craig and De Burca, Chapter 14 • Recommended Reading – Plaumann & Co v Commission (Case 25/62) – NV International Fruit Company v Commission (cases 41-44/70) • Further Reading – Balthasar, S, ‘Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: the New Article 263(4) TFEU’ (2010) 35 ELRev 542

Review of Legality II

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Individual Concern: Regulations and Directives • An applicant can claim to be individually concerned by a legal act that takes the form of a regulation or a directive – Calpak (cases 798-790/79) • A closed and definable group easily identified by the Commission. • Abstract terminology test • Because the regulation used abstract terminology the applicants could not show individual concern. Codorniu (Case C-309/89) • A Calpak ‘true regulation’ • Differentiated itself from all other traders due its trademarking of the word crémant. – Liberalized Calpak but stayed true to Plaumann – Still very restrictive The Lisbon Treaty • The ECJ may well be reluctant to conclude that a provision termed a ‘legislative act’ will be of individual concern in the sense demanded by the Plaumann test. An applicant may well face equal difficulties in convincing Union Courts that a delegated act in the form of a regulation or directive is of individual concern as judged by the rigorous requirements of the Plaumann test, given that delegated acts are defined as non-legislative acts of general application. Individual Concern The ECJ has taken a more liberal approach in three key areas:

AntiDumping

1.

Competition

State Aids

Anti Dumping - Anti-dumping regulations prevent people outside the EU flooding the market with goods at low prices. - Must be a regulation. Not a decision. Timex (case 264/82) – the firm that initiated the complaint about dumping. i. Unhappy with the resulting regulation. Allied Corporation (cases 239 & 275/82) – producers of the product subject to anti-dumping. ii. Producers and exporters charged with dumping would be individually concerned. Extramet (case C-358/89) The importer of the product against which the anti-dumping measure is imposed A more lenient application of Plaumann?

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2. Competition - Any natural or legal person who claimed to have a legitimate interest, could make an application to the Commission, putting forward evidence of a breach of Art’s. 101 & 102. i. Metro (case 26/76) - A competitor challenging a decision by the commission that was not addressed to them. 3. State Aid - Prevent competition from being distorted through government subsidies, giving it an unfair advantage over competitors. o COFAZ (Case 169/84) – analogous with Metro and Timex. Applicants have standing if their position on the market was significantly affected by the State Aid. Liberal Approach? • Anti-dumping, competition law and state aid all have much more liberal approaches to individual concern. Individual Concern: Reform

UPA (Case C50/00 P)

JégoQuéré (Case C263/02)

UPA (Case C-50/00 P) Advocate General Jacobs • 102 (1) The Court's fundamental assumption that the possibility for an individual applicant to trigger a reference for a preliminary ruling provides full and effective judicial protection against general measures is open to serious objections: • Under the preliminary ruling procedure the applicant has no right to decide whether a reference is made, which measures are referred for review or what grounds of invalidity are raised and thus no right of access to the Court of Justice; on the other hand, the national court cannot itself grant the desired remedy to declare the general measure in issue invalid; • There may be a denial of justice in cases where it is difficult or impossible for an applicant to challenge a general measure indirectly (e.g. where there are no challengeable implementing measures or where the applicant would have to break the law in order to be able to challenge ensuing sanctions); • Legal certainty pleads in favour of allowing a general measure to be reviewed as soon as possible and not only after implementing measures have been adopted; • Indirect challenges to general measures through references on validity under Article 234 EC present a number of procedural disadvantages in comparison to direct challenges under Article 230 EC before the Court of First Instance as regards for example the participation of the institution(s) which adopted the measure, the delays and costs involved, the award of interim measures or the possibility of third party intervention. • (4) The only satisfactory solution is therefore to recognise that an applicant is individually concerned by a Community measure where the measure has, or is liable to have, a substantial adverse effect on his interests. That solution has the following advantages:

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• • •

it resolves all the problems set out above: applicants are granted a true right of direct access to a court which can grant a remedy, cases of possible denial of justice are avoided, and judicial protection is improved in various ways; it also removes the anomaly under the current case-law that the greater the number of persons affected the less likely it is that effective judicial review is available; the increasingly complex and unpredictable rules on standing are replaced by a much simpler test which would shift the emphasis in cases before the Community Courts from purely formal questions of admissibility to questions of substance;

Jégo-Quéré (Case C-263/02) • The CFI followed this line of reasoning in Jégo-Quéré (Case T-177/01). • The ECJ declined to follow this line of reasoning in UPA reversing Jégo-Quéré. Regulatory Acts and the ToL • The term regulatory act does not fit easily with the Lisbon classification of legal acts. – Any legislative Act that does not have implementing measures? Or – Just regulations and decisions? • Plaumann test still applies. Inuit Tapiriit Kanatami, v European Parliament [2013] C-583/11 • The Court decided that regulatory acts in Article 263(4) do not include legislative acts. – The act under challenge in this case was EU Regulation 1007/2009 made by the EU Parliament and Council, and was therefore a legislative act and unchallengeable. • Contrast, an implementing regulation made by the Commission alone, filling in the details not dealt with in the primary Regulation, which could be challenged under Article 263(4) if of direct concern. Problem Question • A decision addressed to Aria has been made by the commission in order to control the amount of Pokémon Cards imported into the EU. Ryan is the only other importer of Pokémon Cards in the EU. He uses article 263 to challenge the legality of the act. As he is the only other importer he claims to be individually concerned. Advise Ryan. • Is this an Act? • Direct concern • Does it directly affect Ryan? • Does the measure leave discretion as to the addressees of the measure? • Individual concern • Differentiated from all other persons? (Plaumann) • Could anyone import Pokémon cards at any time? • Criticisms of the Plaumann test Reading • Basic Reading – Craig and De Burca, Chapter 14 • Recommended Reading – Jégo-Quéré (Case C-263/02) – UPA (Case C-50/00 P) Advocate General Jacobs Opinion • Further Reading – Inuit Tapiriit Kanatami, v European Parliament [2013] C-583/11

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Direct Action Legislation

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-

-

Art. 258 and 259TFEU o Infringement Proceedings o 258 brought by the Commission o 259 brought by another Member State Art. 4(3) and Art. 17(1): Member States have a duty to fulfil their EU obligations and the Commission oversees the application of EU law 260 TFEU: penalty (lump sum or penalty payment)

Art 258 TFEU • If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations • If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. • The commission initiates proceedings though complaints are brought by • The press • Other Member States • European Parliament questions • Correspondence from citizens • Citizens play a role in law enforcement? The Discretion of the Commission • Though complaints are brought by individuals the proceedings are bilateral. – I.e. between the Commission and the Member State Only • The primary objective is ensure the compliance of Member States with EU law. • Could it be used in an arbitrarily selective or overly lenient manner? • Political motivations? • The ECJ will not examine the motivations for the Commission pursuing the case. – Commission v United Kingdom [1988] – Open Skies – Commission v UK et al [2002] Procedural Constraints • Reasonable Time Limits – Is over 5 years too late? Commission v Netherlands [1991] – The Member State have to prove that unusual length can effect its defence – Is 5 days too short? Commission v Ireland [1984] • Very short periods are permitted in emergencies. • Or where the Member State was fully aware of the Commission's position beforehand. Constraints on Discretion • To bring infringement proceedings as soon as a time limit for the implementation of a directive has passed. • Formal notice whenever Member States have failed to notify the Commission how they have implemented a directive. • Codification of own rules Procedures

Administrative stage

Judicial stage

• Informal stage • Commission letter • Reasoned opinion • Referral to the ECJ

Pre-contention • Gives the Member State the opportunity to explain its current

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•

position and try to reach agreement with the Commission In 2009 68% of complaints were dealt with at the informal stage.

Formal Notification • If the issue can not be dealt with informally the State will be given formal notification of the specific infringement alleged by the Commission. – Normally given 2 months to reply. – Commission normally decides within a year whether to take the case to the next stage. – 84% of cases dealt with at this stage. The Reasoned Opinion • The official means through which the Commission inform the state of the – grounds for allegation – time limit for MS response • Lacks binding effect • Commission not obliged to address every argument made by the Member State at the pre-litigation stage – Do not have to indicate the methods of remedying the breach • The Commission must respond to a States response to a letter of formal notice. Commission v Ireland [2002] • The Opinion must be essentially the same as the formal notice. Commission v Italy [2006] • The Commission cannot alter the substantive content of the Reasoned Opinion once it has been made. Commission v Italy [1970] – Unless this narrows what is contained in the reasoned opinion. Commission v Germany [1998] – An extension in order to incorporate events subsequent to the reasoned opinion can be obtained. Commission v France [1983] Confidentiality • WWF – ‘the confidentiality which the Member States are entitled to expect of the Commission in such circumstances warrants, under the heading of protection of the public interest, a refusal of access to documents relating to investigations which may lead to an infringement procedure, even where a period of time has elapsed since the closure of the investigation’. • Petrie – ‘This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter’s voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgement of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgement, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with [Art. 258] proceedings.’ • Bavarian Lager II – 6 years couldn’t compromise an investigation? • Sweden/API – confidentiality not automatic but decided on a case by case basis. • Since 2002 the Commission has had a Website for infringement cases: – http://ec.europa.eu/eu_law/infringements/infringements_decisions_en.htm Referral to the ECJ • The remaining 4% of cases are taken to the ECJ. • In 2008 the Commission claimed that it took an average of 50 months from the time of the reasoned opinion until its referral to the ECJ. • In 2009 the Commission claimed this had fallen to 24 months. Enforcement after the Breach is Remedied • Closing the barn door after the horse has bolted? • Was the Member State in breach at the time of expiry set out in the reasoned opinion?

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– – –

Prevents continued illegality Can rule on breaches of short duration Establish the basis of liability

TYPES OF BREACH 1. Breach of the obligation of sincere cooperation under Art. 4(3) TEU 2. Inadequate implementation of EU Law 3. Breaches which interfere with EU external relations 4. Systemic and persistent breaches or general practices 5. Actions by the Courts of a Member State 1. Breach of the obligation of sincere cooperation - Commission v Netherlands [1982] o Difference between ‘failure to comply with the duty to provide information’ and a ‘failure to fulfil the obligation to implement the directive’. o The burden of proof is on the Commission to show that the obligation has not been fulfilled. o The Member State must contest this information rather than simply deny it. o Member states must facilitate the Commission’s tasks – particularly monitoring compliance with the treaty 2. Inadequate Implementation of EU Law - Commission v France [1974] o Facts similar to Factortame o Obligation of Member State to properly implement Directives o An assertion that naval authorities had been verbally informed was too uncertain and ‘whimsical’. 3. Breaches which interfere with EU external relations - Open Skies [2002] o The Commission brought proceedings against a number of Member States which had bilateral agreements with the US which infringed the EU’s external competence 4. Systematic and Persistent Breaches or General Practices - Even where legislation is properly implemented a state can be held in breach if an administrative practice infringes EU law o Consistent and general o Waste Disposal Commission v Ireland [2005] 5. Actions by the Courts of a Member State - The ECJ have stated that the state is liable for action and inaction of any constitutionally independent organ of the state. - The Commission has avoided the politically sensitive area of a 258 proceeding against a judiciary. o Sweden 2004 – a reasoned opinion for failure of supreme court to make reference to the ECJ •

http://www.euronews.net/2012/01/11/eu-threatens-hungary-with-legal-action/

Reading • Basic Reading – Craig and De Burca, Chapter 12 • Recommended Reading – Star Fruit Company v Commission (Case 247/87) • Further Reading – Prete, L, & Smulders, B, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 CMLRev 9

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Direct Action 2

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Outline of Lecture - Art. 258 Defences - Art. 259 - 260 TFEU: penalty (lump sum or penalty payment) - Interim Measures STATE DEFENCES States may introduce defences they did not raise in the pre-litigation stage. • No adverse affects not a defence – Commission v Portugal [1999] Art. 258 Defences Force majeure: • Abnormal and unforeseeable circumstances • consequences could not have been avoided through the exercise of all due care • Member States must show a normal degree of diligence • Bomb attack? Commission v Italy [1985] Lack of intention is not a defence • 258 TFEU depends on an objective finding • Member States are responsible ‘whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution’. Commission v Belgium [1970] • There are no ‘excusable errors’ The EU measure is illegal – Commission v Greece [1988] – Member States should have raised the issue under Art. 263. – Could theoretically apply if the measure was so gravely flawed as to be ‘non-existent’. Reciprocity argument (they haven’t done it why should we?) – Commission v UK [1991] • Tensions between EU law and other types of international law – Commission v Belgium and Luxembourg [1964] – Commission v France [1979] Difficulty with the Commission's discretion? The ‘toothless’ nature of Art. 258 • Could only find a violation. • No other penalties. – In order for compensation to be awarded Art. 260 was created under the Maastricht Treaty. Art. 259 Allows a Member State to initiate an action against another for an alleged Treaty violation. – ‘A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice. – Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission.’ – ‘The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing. – If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being bought before the Court.’ The complainant State can take the matter to the ECJ even where the Commission believe there is no breach.

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Very rarely used due to hostility it would cause between Member States – Member States can bring cases under Art. 258. – Spain v UK [2006] •

Intended to provide an incentive for Member States to comply with ECJ rulings. – Art 260(3) states: ‘When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.’

Examples of Art. 258 and Art. 260 Commission v Greece [1992] – Art. 258 Commission v Greece [2000] – Art. 260 – 20,000 Euros per day – Eventually totalling €5,400,000 Art. 260 • Lump sum and/or penalty payment • Criteria for calculation of penalty: – The degree of seriousness of the infringement – The duration of the infringement – The ability of the Member State to pay the penalty Commission v France [2005] The ECJ do not have to follow the guidance of the Commission – The Commission recommended a penalty payment. – The ECJ fined France € 20,000,000 in July 2005, and the periodic payment was € 57,000,000 at six monthly intervals. Question Given the state of the economy at present can these measures really be uniform and effective? Lisbon Treaty Changes to Art. 260 • The Commission is no longer required to issue a reasoned opinion before bringing seeking a remedy under Art. 260. • If a Member State has failed to notify the Commission of measures transposing an EU directive they can be charged directly under Art. 260. – In these circumstances the Court can not exceed the amount recommended by the Commission. Art. 260 • No upper limit to the fines • No formal collection methods • 85 cases in 2008 – Half of these were environmental Interim Measures • Art. 278 – ‘The Court may… if it considers that circumstances so require, order that the application of the contested act be suspended’. • Art. 279 – ‘The Court… may in any cases brought before it prescribe any necessary interim measures. • Must be urgent • Factual and legal grounds which prima facie justify the granting of interim measures.

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•

The Commission must be diligent.

Role Play

Complaint

Reasoned Opinion

Referral to the ECJ

Informal Stage

Formal Notice

Art. 260

Conclusions • Has been criticised for lack of effectiveness • Absence of a role for individual complainants • Unresponsive attitude of the Commission. – These issues have been addressed • The growth in use of Art. 260 may lead to calls for greater clarity and consistency; particularly the calculation of fines. Reading • Basic Reading – Craig and De Burca, Chapter 12 • Recommended Reading – Star Fruit Company v Commission (Case 247/87) • Further Reading – Prete, L, & Smulders, B, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 CMLRev

State Liability

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Intended Learning Outcomes • By the end of this session students should be able to: – Understand the principle and origins of state liability Problems with Direct Effect • Confusion over direct, indirect and incidental horizontal effect. – If a situation was the fault of a Member State (for example a failure to implement a directive) who is liable for the remedy? Francovich v Italy (cases C-6 & 9/90) • A group of ex-employees seeking arrears of wages following their employers insolvency. • Directive 80/987 required Member States to provide for a guarantee fund to ensure the payment of employees’ arrears of wages in the event of employers insolvency. – As a claim against former employers fruitless • Consequently, they brought proceedings against the state. • 2 Claims – The state had breached the claimants’ rights contained in the directive (which they claimed were directly effective) – The failure of the state to implement, as required under Art. 288 TFEU & Art. 4 TEU (basis of state liability) – Under Art. 258 proceedings the ECJ had already held that Italy was in breach of its obligations (Commission v Italy case 22/87). – First claim failed as Directive was not sufficiently clear, precise and unconditional. • Where a state has failed to implement an EU directive it would be obliged to compensate individuals for damage suffered if: – The directive involved rights conferred on individuals; – The content of those rights could be identified on the basis of the provisions of the directive; and – There was a causal link between the states failure and the damage suffered by the persons affected • Courts reasoning based on – Member States obligation to implement under Art. 288. – Jurisprudence in Van Gend & Costa that certain provisions are intended to confer rights on individuals – direct effect isn’t in the treaties, it’s a creation of the ECJ. Job of national courts to make sure the rights of those individuals are protected and that the state can be sued by one of its own citizens. – National courts are obliged to provide effective protection for those rights (Simmenthal & Factortame) Brasserie du Pecheur SA v Germany (Case C-46) • ECJ held that state liability not confined to a failure to implement directives but all acts and omissions of Union law that could lead to liability. This case follows on from the Francovich ruling however broadens it. So long as; 1. The rule of law infringed must be intended to confer rights on individuals • Similar to Francovich. 2. The breach must be sufficiently serious 3. There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties • **Has the institution ‘manifestly and gravely exceeded the limits of its discretion’? 1. “The 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 intentional 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.”

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For Whose Actions is the State Liable? • Actions by government are clearly covered. What about other institutions? – Commission v Belgium (Case 77/69) bind all agencies and organs of a Member State even those that are constitutionally independent. – Can also concern the police, NHS, and the court system to name a few… AGM-COS MET Srl v Suomen Valtio and Tarmo Lehtinen (Case C-470/03) • An individual official may be liable in addition to the Member State for any breaches of Union law. – Safety inspections and public announcements leading to fall in sales. – Safety inspector criticised a particular part of the industry claiming they rbeached health and safety conditions – resulted in fall in sales for the company. – They sued the state saying that it was a breach of EU law. – If presented as official rather than personal opinions could lead to state liability. • More about compensation than enforcing EU law? Kobler v Austria (Case C-224/01) • Liability for judicial failures? – Austrian Supreme Court decided a case in conflict with an earlier ruling of the ECJ (SchöningKougebetopoulou case C-15/96) – Köbler brought a case alleging the Austrian Supreme Court had failed to apply EU law correctly. – Courts can be implicated under the Francovich test. – Danger that the relationship between the courts has changed/is changing that if the courts don’t make decisions in line with EU law they can be sued • Courts must be adjudicating in the last instance (similar to article 267) – Emphasis on the mandatory jurisdiction of such a court to request a preliminary ruling – under an obligation to request the preliminary ruling – Only where the court has ‘manifestly infringed the applicable law’ – only where they have got the law wrong/declined to refer the case under art 267 and get the case right – danger that this turns the system into a system of appeals. – Not limited to intentional fault or serious misconduct (Traghetti case C-173/03). • The supreme court in these instances don’t have to intentionally say that they are not referring under article 267 or some other breach of serious misconduct under Traghetti. It can be accidental fault and does not need to be serious misconduct. Problems with Kobler • Is the finality of judgments undermined by imposing state liability on courts? – ECJ claims the parties would be different, and the finding of state liability would not reverse the original decision. • Would undermine judgment though • Would this undermine the independence or authority of the judiciary in member states? – If their decisions can effectively if not actually be overturned? – ECJ argue this will enhance the effectiveness of the judiciary because of the doctrine of state liability – They are the ultimate authority of law in a particular member state – they cannot have their decisions overturned except by themselves (and HoL) – Presents difficulties Does the Measure Confer Rights? How do we understand when a measure confers rights? • Peter Paul v Germany (case C-222/02) – Failure of German banking supervisory authority to correctly supervise a bank. – They were under an obligation to ensure supervision was not combined with an independent right to compensation.

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Conditions of Liability • For liability to arise it is not necessary for the infringement of EU law to have been established by the ECJ under Art. 258 • In Francovich it had already that there had been a breach of article 258. • Nor is it necessary to prove fault on the part of the national institution concerned going beyond that of a sufficiently serious breach of EU law. • What does it mean to be a sufficiently serious breach? • Not necessary to prove fault beyond the idea of sufficiently serious. *What is ‘Sufficiently Serious’? 1. The institution must have ‘manifestly and gravely exceeded the limits of its discretion’ 2. The breach must be ‘inexcusable’. – Given the lack of clarity at times of Union law, and that Member States are obliged to respect it, it is submitted that the crucial element of Brasserie du Pêcheur will be the clarity and precision of the rule breached. – Rule in Brasserie depends on clarity and precisions – reliant upon the Van Gend en Loos criteria. – Idea of this requirement of clarity and precision – requirement that comes from ECJ but is not in the treaties themselves. R v Her Majesty’s Treasury, ex parte British Telecommunications plc (Case C-392/93) - BT CASE – Found that although the UK implementation was in breach of the directive the relevant parts were sufficiently unclear as to make the UK’s error excusable. – Defence in state liability is that the requirements in the directive were not clear, precise and unconditional (mainly the first two). – Here, it was held that you could have implemented the directive in the way that the UK had implemented it – lent itself to that method of interpretation. – **Defences to this area – not clear and precise. – The court said the article in question was: – ‘imprecisely worded and was reasonably capable of bearing, as well as the construction applied to it by the ECJ the interpretation given to it by the UK in good faith and on the basis of arguments which are not entirely void of substance. The interpretation, which was also shared by other Member States, was not manifestly contrary to the wording of the Directive or to the objective pursued by it’. – Even the objective itself fell in line with what the UK were trying to do – decent attempt at trying to implement this directive even though it had fallen outside of the ECJ’s understanding of how to implement it. – ‘A restrictive approach to state liability is justified… to ensure that the exercise of legislative functions is not hindered by the prospect of actions for damages whenever the general interest requires the institutions or Member States to adopt measures which may adversely affect individual interests.’ – Essentially – state liability should not come up every time a directive is implemented because danger of it being implemented effectively/less effectively is that people could just sue the state all the time for the way that the directive has been implemented – thus making directives even less effective than what they already are.

Problem Question

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The UK Government has failed to implement a directive on pension schemes. The company that Lafayette worked for has gone bankrupt leaving Lafayette without a pension. – Advise Lafayette

Francovich Test 1. The directive involved rights conferred on individuals; 2. The content of those rights could be identified on the basis of the provisions of the directive; and 3. There was a causal link between the states failure and the damage suffered by the persons affected. Brasserie du Pêcheur 1. The rule of law infringed must be intended to confer rights on individuals 2. The breach must be sufficiently serious 3. There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. Köbler – not relecant as it doesn’t apply to the Supreme Court Could comment on the fact that it was a decision made by the SC. BT – clear and precise? Fact that they failed to implement entirely would probably put this outside of the scope of BT. Reading • Basic Reading – Craig and De Burca, chapter 8 • Recommended Reading – Francovich v Italy (cases C-6 & 9/90) – Brasserie du Pêcheur SA v Germany (Case C-46) • Further Reading – Köbler v Austria (case C-224/01) – R v Her Majesty’s Treasury, ex parte British Telecommunications plc (Case C-392/93

State Liability 2

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Intended Learning Outcomes • By the end of this session students should be able to: – Understand the difficulties of state liability. R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd (Case C-5/94) • Claim for damages by an exporter for losses suffered as a result of a UK ban on live sheep to Spain. • Ban imposed following complaints from animal welfare groups that Spanish slaughterhouses did not comply with a council Directive. • Spanish authorities had implemented the directive but had not method of ensuring its compliance. • The UK raised the matter with the Commission but decided not to raise it as an action under Art 258. • UK ban in breach of Art 35 and could not be justified under Art 36. As the UK had provided no evidence. • This breach was found to be sufficiently serious under Francovich. • ‘Where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach’ • This case fit the criteria for Francovich – state liability was found and damages were paid. First time in UK law we see state liability being implied. • Sufficiently serious breach? Mere infringement of EU law could be sufficient to be a serious breach under EU law and invoke a case of state liability. Dillenkofer v Germany (Cases C-178, 179, 188, 189 & 190/94) • Germany’s failure to implement a directive designed to protect consumers in the event of travel organisers’ insolvency was ‘sufficiently serious’. – Case about package holidays – If a package holiday provider went insolvent, then the state would be under a requirement to give that money back to the consumers (ATOL/ABTA) – Failure to implement that directive was sufficiently serious. –

Rechberger & Greindle v Austria (case C-140/97) period of commencement after the time limit for implementation was manifestly incompatible with the directive. • Triggered state liability.

Denkavit International BV v Bundesamt für Finanzen (cases C-283, 291 & 292/94) • Faulty implementation of a directive. – Followed its reasoning in BT and decided that the directive lacked clarity and precision. • Some directives are not clear and precise (BT_ • If not, then the state is not obliged under state liability. – Case law also lacked clear guidance. – Consequently Germany’s breach could not be regarded as sufficiently serious. Sweden v Stockholm Lindöpark AB (case C-150/99) • Questions idea of what it means to be sufficiently serious • Advocate-General Jacobs: – In French, the Court has always used originally with regard to liability incurred by the Community the term violation suffisamment caractérisée. This is now normally translated into English as sufficiently serious breach. However, the underlying meaning of caractérisé, which gives rise to its inherent implication of seriousness, includes the notion that the breach (or other conduct) has been clearly established in accordance with its legal definition, in other words, that it is a definite, clearcut breach. This may help to explain why the term was previously translated as sufficiently flagrant violation and may throw additional light on the choice of factors which the Court has indicated should be taken into consideration when deciding whether a breach is sufficiently serious.

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On thinking about ‘sufficiently serious’ they are relying on a French principle that this is a clear cut breach – there is a ‘flagrant’ violation. Perhaps this gives us a better understanding of what sufficiently serious means.

Discretion of National Courts? • Although the ECJ has concluded whether a breach was sufficiently serious to give rise to liability this should be left up to national courts to decide. – The ECJ should give guidance (in accordance with Art. 267). In preliminary ruling and guidance/interpretation. – Up to the national courts themselves to apply state liability • Is this problematic to make state courts pay their own damages? Norbrook Laboratories Ltd v Minister of Agriculture, Fisheries and Food (case C-127/95) • UK Case • ‘Where the Member State was not called upon to make legislative choices, and had considerably reduced, if no discretion, the mere infringement of [EU law] may be sufficient to establish the existence of a sufficiently serious breach’. – Left it to the national court to decide – huge pressure to make decision on amount of damages to be awarded. – Similar decision in Klaus Konle v Austria (case C-302/97) • All case law in this area is just emphasising that the mere infringement of EU law is enough to trigger a sufficiently serious breach of state liability. Are the Guidelines Clear? • If national courts are to assess the seriousness of a breach it is crucial that the guidelines are clear. • Need to know what rule they are applying – Brasserie du Pêcheur – clear (sufficiently serious) – BUT Hedley Lomas – clouds the issue and makes it more difficult to apply. What will constitute a ‘mere infringement’? • Mere infringement different from an infringement? Or not? • Only applicable in conjunction with Brasserie du Pêcheur test - idea of being sufficiently serious? Gervais Larsy (case C-118/00) • Even if there is some ambiguity in the text of the relevant measure the BT approach will not be followed if the ECJ has already interpreted that issue and the Member State has failed to follow that provision. • Start to see a move towards precedent in some way – if the ECJ have already decided something, then member states are under and obligation to follow that line of reasoning and other national courts are under this obligation to follow the line of reasoning. • Larsy is a qualification of the BT principle!!! The Claimant Must Prove That Damage has Been Suffered • Schmidberger v Austria (case C-112/00) – Trucking company come across road blockage caused by protest. Claim that they have a right to free movement of goods. – Advocate-General Jacobs – Necessary to establish loss or damage which is attributable, by a direct causal link, to a sufficiently serious breach of EU law. • Includes a right to claim for lost profit • Willing to accept that it may not be quantifiable in which case a flat-rate will be used. Damage must have been caused by the Breach • Brinkmann Tabakfabriken GmbH v Skatteministeriet (case C-319/96) – Similar to BT as it is not completely against the wording of the directive. – The Danish failure to implement a directive was not sufficiently serious to incur liability.

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The classification (of rolling tobacco) was not manifestly contrary to the wording and aim of the directive. The Commission and the Finnish government supported the Danish classification.

Brinkmann Tabakfabriken GmbH v Skatteministeriet (case C-319/96) • The directive had not been implemented in Denmark by legislative decree, though the authorities had given it (imperfect) immediate effect. • • There was no direct causal link between the legislative failure and the damage suffered. – A failure to implement a directive through legislation may not be a sufficiently serious breach IF it has direct effect in some other way • E.g. a monist tradition. Brasserie du Pêcheur in the English Courts • R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [1998] 1 CMLR 1353 – Case regarding shipping quotas – Hobhouse LJ concluded that the UK breach was serious enough to warrant liability. Sufficiently serious because: • The UK had introduced the measures in primary legislation in order to ensure that the implementation would not be impeded by legal challenge • The Commission had advised against the legislation. R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [1998] 1 CMLR 1353 • Lord Slynn – Dissenting judgment – The views of the Commission should not be conclusive proof as to • Whether there has been a breach of Union law • Whether the breach was sufficiently serious to justify an award of damages. – In a sense, Lord Slynn is correct in saying this – only need to think of nature of article 258. • However, can be qualified by saying that it gives a good idea of whether there has been a breach – fact that they’ve remedied it Relationship of State Liability to Direct Effect • Direct effect – No need to consider whether something is ‘sufficiently serious’. – If something is directly effective there is no real need to discuss state liability or whether something is ‘sufficiently serious’ • Can state liability be used in preference to direct and indirect effect? – Used where there is a gap in protection (Faccini Dori) • So if direct effect and indirect effect don’t work/aren’t applicable, that is when state liability should be used. – A corollary of direct effect (Brasserie du Pêcheur) • A side effect of direct effect/only been introduced or caused by direct effect. – An approach of last resort (Lindöpark) – ********* For an answer work through indirect and direct effect before looking at state liability (the answer will usually be state liability)************* Classifying State Liability in National Law • State liability remains a hybrid – part national law, part EU law – with national courts ultimately responsible for applying the conditions of a particular case. – National courts decide whether the breached law was intended for the applicant – Whether there was a link between the breach and the damage – Whether the damage suffered was a type for which damages can be awarded

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A principal of liability for acts in breach of EU law, clearly breaks new constitutional ground in most if not all MS’s. – Unlikely to be applied overwhelmingly in practice

AGM-COS MET Srl v Suomen Valtio and Tarmo Lehtinen (case C-470/03) • National law may lay down specific conditions, provided they do not make it impossible or excessively difficult to obtain compensation caused by a MS’s breach of EU law. • National courts can put down limitations as to how and when state liability will be applied and under what circumstances. – Finnish limited to damage caused by criminal offence, the exercise of public authority, other especially serious reasons. – These circumstances were found to be too restrictive. Problem Question • The Supreme Court in the UK has disregarded a ruling by the ECJ on a badly implemented directive. The Commission admit that the wording of the Directive was ambiguous. Priya’s company has suffered loss as a result of the UK’s understanding of the directive. The UK Government has restricted state liability claims to criminal offences only. – Advise Priya Francovich Test 1. The directive involved rights conferred on individuals; 2. The content of those rights could be identified on the basis of the provisions of the directive; and 3. There was a causal link between the states failure and the damage suffered by the persons affected. Brasserie du Pêcheur 1. The rule of law infringed must be intended to confer rights on individuals 2. The breach must be sufficiently serious 3. There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. Köbler –raise when the court system infringes EU law. Badly implemented directive Wording of the directive is ambiguous and the commission admit that this is the case: BT Lehtinen Conclusion • State Liable for legislative (in)action. • Emphasises the subordinate role of MS’s. • A strong tool before national courts to ensure the enforcement of individual rights. – Francovich and Brasserie du Pêcheur add hurdles to this. Reading • Basic Reading – Craig and De Burca, chapter 8 • Recommended Reading – Francovich v Italy (cases C-6 & 9/90) – Brasserie du Pêcheur SA v Germany (Case C-46) • Further Reading

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Köbler v Austria (case C-224/01) R v Her Majesty’s Treasury, ex parte British Telecommunications plc (Case C-392/93)

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Equality ILOs •

By the end of this session you should understand: – Framework, Scope and Grounds of equality and discrimination law

Why Protect Equality? • Concept: Equality – Human beings have equal moral worth – Don’t take morally irrelevant characteristics into account when dealing with people • Concept: Diversity – Human beings are diverse and have diverse ways of living life – Don’t reduce diversity unnecessarily • Equality is not sameness but equivalence Concept of Equality • Formal equality or equality of opportunity – Treat like situations alike – Limited approach to causes of inequality • Substantive equality or equality of results – Act against the causes of inequality by favouring groups which have been disadvantaged – Prioritises group over the individual Context: Evidence of Inequality • Life: Mortality for infants in childbirth rates 7 times higher for Black African asylum seekers compared to white women • Education: Two thirds of LGT secondary students reported severe bullying, 17% had received death threats – Equality and Human Rights Commission, How Fair is Britain? (2010) • Work: Women earn 17.6% less than men on average in the EU, have more precarious work contracts, and involuntary part-time – EU Commission Report, Equality between women and men (2009) How does EU law protect equality? • Equality as a market requirement – Article 157 TFEU: equal pay for equal work or work of equal value. – Article 157 was adopted in the original founding treaties because France did not want to be at a competitive disadvantage – “Investing in gender equality policies pays off in terms of higher female employment rates, women’s contribution to GDP, tax revenues and sustainable fertility rates” (Commission Report, Equality, 2009) Article 157 Provides… • 1: “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied… • 3: The European Parliament and the Council… shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation… • 4: …the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity…” Dafrenne v Sabena (1976) Case 43/75 • “Article 157 pursues a double aim.

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First, in the light of the different stages of the development of social legislation in the various MS’s, the aim of Art 157 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay. Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasised by the Preamble to the Treaty.”

Equality as a Human Right • The ECJ ruled that the economic aim of sex equality was secondary to the social aim, which constitutes the expression of a fundamental right Schroder C-50/96 • Article 19 was adopted by the Treaty of Amsterdam, giving the EU competence to combat discrimination on a range of grounds and beyond the context of employment • (Age) equality as a general principle of EU law, Mangold C-144/04 Article 19 Provides… • 1… “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.” – Art 19(1) requires unanimity in the Council, Art 19(2) allows for the adoption by a qualified majority of supportive, non-harmonizing incentive measures to combat discrimination. Legal Effect: Core Rights • An individual has a right to be free from direct discrimination, indirect discrimination, harassment and victimisation (see harms next lecture) • In the labour market (see material scope) • On grounds of sex/gender, race/ethnicity, age, disability, religion/belief, age and sexual orientation (see personal scope) When does Discrimination Law apply? Material Scope • In the labour market • “… this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: – a) conditions for access to employment, to self-employment or occupation, including selection criteria, and recruitment conditions… – b) access to all types and to all levels of vocational guidance, vocational training… – c) employment and working conditions, including dismissals and pay – d) membership of, and involvement in, an organisation of workers or employers…” • Race Directive 2000/43 and Framework Directive 2000/78 Article 3(1) • Recast Equal Treatment Directive 2006/54 Article 14(1) Meaning of Pay • Any consideration that the worker receives directly or indirectly in respect of employment from her employer – Developed in context of sex discrimination legislation and case-law – Article 157, Article 2 Recast Directive, Seymour Smith Case C-167/97 • Pay has included occupational pension schemes, travel concessions, redundancy pay, maternity leave pay, unfair dismissal compensation and statutory sick pay Meaning of Worker • A worker is “a person who, for a certain period of time performs services for and under the direction of another person in return for which he receives remuneration” Allonby para 67

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Self-employed workers who are contracted out may be workers for the purposes of discrimination law. Allonby was a self-employed teacher who was contracted out to a college, her former employer, by an agency

The Race Directive 2000/43 • Covers – Employment, – Social protection, – Health care, – Housing education • Firma Feryn (2008) Case C-54/07 – race discrimination and causation. – the ECJ side stepped the problem of the relationship between race discrimination and migration and the Directive’s exclusion of nationality discrimination by appearing to treat a public statement by an employer who was seeking to recruit fitters that it ‘could not employ immigrants because its customers were reluctant to give them access to their private residences’ as equivalent to a statement that it would not employ people of a certain racial or ethnic origin. The Framework Employment Directive 2000/78 • Prohibits discriminations on the grounds of sexual orientation, religious belief, age and disability. – Only covers employment – Coleman (2008) Case C-306/6 – Discrimination for disabled child? • “Where it is established that an employee in a situation such as that in the present case suffers direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.” The ‘Recast’ Equal Treatment Directive 2006/54 • Gender – Covers: – Employment – Social Security – Vocational Training – Working Conditions Scope of the Directives

Access to Goods and Services • E.g Car insurance – Rules regulating car insurance premiums fall within the scope of Directive 2004/113

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In Test Achats Case C-236/09, the CJEU found that Article 5(2) of the Directive was unlawful in allowing the gender of an individual to be taken into account when calculating premiums for car insurance • Only on the basis of race and gender. • Specifically excludes education and the content of media and advertising.

Who can rely on Discrimination Law? • Grounds/Personal scope – Those who are discriminated against on grounds of sex/gender, racial or ethnic origin, religion/belief, age, disability, and sexual orientation (Article 19 TFEU) – Grounds include those who are discriminated against by association e.g. carers of disabled children come within the scope of those discriminated against on grounds of disability Coleman Case C-303/06 Sex/Gender • The difference between women and men, includes both biological differences and social differences • Includes transsexuals and gender reassignment P v S C-13/94 • Excludes sexual orientation Grant Case C-249/96 • Pregnant women and mothers – Discrimination on the basis of pregnancy is a form of direct sex discrimination: Dekker, Recast Dir Art 2 c, Dir 92/85 and proposed amendment – Right to 14 weeks maternity leave (Art 8, Dir 92/85) and to return to equivalent job (Art 15, Recast Dir) Parents’ Rights • Right to 4 months parental leave to take care of a child until given age of up to 8 • Rules which disadvantage those who have spent significant time on childcare may bring an employer within the scope of sex discrimination Cadman Case C-17/05 Race and Ethnic Origin • No legislative definition. Preamble RD rejects theories of separate races. • Race as a social construct which fixes on observable characteristics e.g. skin colour • Ethnicity as a social construct which fixes on practices which indicate long, shared group history and cultural traditions – Sikhs, Jews and gypsies recognised as ethnicities in English discrim law, not Rastafarians • Includes status as an immigrant or foreigner e.g. Feryn Case C-54/07 • Racial and ethnic origin have the broadest of protections in EU discrimination law see Art 3.3 RD Religion or Belief? • What counts? – Religion and perceived religion – Belief likely to include atheism and humanism (DTI, equality law guidance) – Environmental beliefs (a belief in man-made climate change) were beliefs for the purposes of English law implementing the Framework Directive in Grainger v Nicholson (2010) Disability • Impairment: Court adopted a medical model of disability in Navas Case C-13/05 • Not illness: Navas • Employers have a duty of reasonable accommodation, Article 5 of the Framework Directive Age • • •

Older and younger workers Retirement regulation may fall within scope of age discrimination Age Concern England Case C-388/07 Non-discrimination on grounds of age was elevated to a general principle of EU law in Mangold – But not invoked in later age discrim cases Bartsch, Felix and Lindorfer

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Criticised by Advocat General in Navas

Sexual Orientation • Excluded from sex ground pre Article 19 by Grant • Likely to included assumed or perceived sexual orientation, even if untrue • Rights attached to marital status excluded by Recital 22, Framework Directive – But if surviving spouse and surviving gay partner are in comparable situations under national law, then those suffering discrimination in relation to benefits for workers’ spouses may fall within the scope of sexual orientation discrimination Maruko Excluded Grounds: Nationality • Framework and Race Directives exclude nationality from their coverage, see Article 3(2) • A different approach is adopted in Article 21(1) of the Charter, which provides: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” Conclusion • EU’s legal competence to prohibit discrimination and promote equality for economic and rights-based reasons • Discrimination law applies in the context of 1) employment and related activities for all grounds, 2) employment, social security, healthcare, education and access to goods and services for race, and 3) employment, social security, goods and services for sex. Further Reading • Basic Reading – Craig and De Burca, Chapter 24 • Recommended Reading – Case 43/75 Defrenne v Sabena [1976] ECR 455 – Case C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743 • Further Reading – Crenshaw, K. (1993) "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics" from Weisberg, D.K. (ed.) Feminist Legal Theory: Foundations, pp. 383-395, Philadelphia, Temple University Press. [ELE]

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Equality 2 ILOs •

By the end of this session students should be able to: – Understand the harms and remedies of EU equality law.

Direct Discrimination • Where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of [sex, race, ethnic origin, religion, belief, age, disability or sexual orientation]. – Article 2(2) (a) of the Race Directive, Framework Directive, – Article 2(1) (a) Recast Equal Treatment Directive – Article 2(a) Access to Goods and Services Directive (sex); Less Favourable Treatment • ‘Less favourable treatment’ is usually obvious as the reason for the complaint • Feryn (2008): Public statements that an employer will not hire immigrants • Coleman (2008): given different job on return from maternity leave, refusal of flexible working hours and conditions, abusive comments, threats of dismissal, formal grievance not dealt with Comparable Situations • Objective basis • Grant: Claim defeated through choice of comparator. Grant claimed sex discrim. on basis of her comparison with a male employee with an opposite sex partner. Court said comparison was with a male employee who had a same sex partner. – Should this have been the comparator? Maruko (2007): Denial of a pension to surviving same sex life partner of the worker was found to be discriminatory, because life partner and spouses were in comparable situations given their treatment in national law. Definition allows hypothetical comparators given reference to ‘would be’. Comparing Across Employers • Collective bargaining agreements: Defrenne v Sabena • Job classification schemes: Art 4 Recast Directive • But in absence of above, employer must be a ‘single source’ to compare across jobs: Lawrence and Allonby – The Agency Workers Regulations (AWR), which comes into effect 1 October 2011, is set to be the single biggest change to the rights of temporary workers. – Equal treatment for agency staff – AWR will give temporary workers the same basic employment rights and working conditions as permanent staff. Pay, holidays and the use of collective amenities including canteens and childcare facilities will have to be made available from the first day of their appointment. They will also have the right to be told about any relevant vacancies at the hirer’s company during the job. – If the agency worker has worked for the same hirer in the same role for 12 weeks, he/she will be entitled equal treatment to that of a comparable employee with regards to rights such as holiday, rest breaks and pay etc. – The new Regulations are intended to bring UK employment law in-line with EU regulations. – The EU Temporary and Agency Workers Directive (2008/104/EC) Indirect Discrimination: Definition Where an apparently neutral provision, criterion or practice would put persons of particular [ground] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary; Art. 2(1) b Recast

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Dir., Art. 2(2)b Race Dir., Framework Dir., Goods and Services (sex) Dir., proposed Goods and Services Dir. (religion etc.) Note: Also requires comparison Indirect Sex Discrimination: Examples • Part-time workers: Jenkins, Bilka Kaufhaus • Job-sharers: Hill • Professions dominated by one sex: Enderby • Self-employed workers with employed workers if self-employment is notional: Allonby – Old Jenkins test for disadvantage: if a considerably smaller percentage of one group are accessing the better treated category – New legislative test: No percentage requirement, person must establish prima facie case of disadvantage. Indirect Discrimination on Other Grounds • Rules which put members of a religion or race at a particular disadvantage • Example of a successful indirect race discrimination claim in national law: Walker v Hussain (1996) holiday policies preventing employees from observing religious holidays Harassment: Definition • A form of discrimination which occurs when unwanted conduct related to [religion or belief, disability, age, sexual orientation, race or ethnic origin] takes place, which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment (all directives). [In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States (Art. 2(3) Race and Framework Dirs).] Harassment • Prohibition of harassment per se (no comparator required) • Permitting national definition could enable variation • Sexual harassment: Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile degrading, humiliating or offensive environment. Justifications: Genuine Occupational Retirement Some jobs require the particular ground (religion, sex etc.) as part of the job’s criteria. See Art. 4 RD and FD, Art 14(2) Recast ETD. Specific religious requirement: Art. 4(2) FD • Restricting midwives to women a GOR Commission v UK (1980) • Restricting firearms-carrying police jobs to men a GOR Johnston v RUC (1983) • Restricting commando unit of army to men a GOR Sidar v Army (1997) • Restricting army jobs to men not a GOR as GORs intended to apply to specific activities Kreil v Germany (1998) GOR: Religion/Belief • Religion or belief may be a genuine, legitimate and justified occupational requirement, by virtue of the religious or belief based ethos of the church, public or private organisation in which the occupational activities are carried out. Churches, public and private organisations are permitted to require individuals working for them to act in good faith and with loyalty to the religion or belief based ethos of that organisation; Art. 4(2) FD Objective Justification of Indirect Discrimination • Directives’ definition of indirect discrim permits discrim which is objectively justifiable, that is has a legitimate aim and is proportionate. • Some specific similar justifications e.g. Art 4(5) Access to Goods and Service Dir (sex)

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Examples of Objective Justifications • Rummler: Criteria on physical strength were legitimate and proportionate • Bilka Kaufhaus: Discouraging part-time work was a legitimate aim, but paying part-time workers a lesser rate was disproportionate • Cadman: Rewarding experience was a legitimate aim for making length of service a criterion of promotion • Recital 16 of Goods and Services Dir: Legitimate aims include the protection of victims of sexual violence and the organisation of sporting activities. Legitimate Aims and Age Discrimination – Art 6 FD • Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Legitimate aims and Age Discrimination Mangold: A law which excluded workers over 52 from protection against fixed term contracts had the legitimate aim of promoting the employment of older workers but was disproportionate in going further than necessary in such promotion. Palacios de la Villa: Law authorising compulsory retirement at 65 was justifiable and proportionate. Legitimate aim of promoting employment and took into account receipt of pension and specific features of job. Age Concern England (2009) (Heyday): A preliminary ruling on a challenge to the transposition of the Framework Dir into the UK’s Age Discrim Regs. High standard of proof for legitimate aim No significant difference between Art 6(1) and Art 2(2)(b) For the national court to ascertain legitimacy and proportionality Public Interest/Private Right “This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.” New justification introduced by the Framework Directive Similar to ECHR defence in qualified rights Positive Action • Tackling systemic inequality by promoting representation of under-represented groups • Article 157.4 LTFEU • Art 3 Recast Directive • Art 5 Race Directive • Art 7 Framework Directive • Specific provision re religion and police force in Northern Ireland, Art 15 Framework Dir. ECJ on Positive Action • Kalanke: Automatic priority to shortlisted women in underrepresented sectors - unjustified • Marschall: Absolute and unconditional priority unjustifiable, but quotas taking individual circumstances into account justifiable. • Badeck: Flexible public services rules giving women priority in recruitment and promotion were justified • Abrahamson: Imprecise and unpredictable rule which gave priority to woman who met qualification criteria but had less qualifications than male candidate unjustified Remedies and Enforcement • Compliance

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Member state obligation to abolish rules, incl. collective agt provisions, which offend • Minimum requirements EU law sets a minimum standard. Member states free to adopt higher standards and must not reduce existing protections • Defence of rights Must ensure availability of judicial and admin procedures Remedies and Enforcement Burden of Proof Once complainants establish facts from which direct or indirect discrimination may be presumed, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment (e.g. Art 19(1) Recast Dir) Feryn (2008): Public statements against hiring immigrants established facts of discrimination. For the employer to prove recruitment hadn’t in fact been discriminatory. Penalties - Effective, proportionate and dissuasive measures of compliance must be taken - Compensation permissible under all Directives. - No upper limit for compensation may be set, except under Race and Framework Directives Victimisation Member States must protect complainants from victimisation i.e. adverse treatment because of complaint – Coote (1998): Refusal to provide references – Directives’ provisions e.g. Art 9 RD, Art 11 FD Conclusion • Despite changes made to the law this is still a problematic area of EU law with many individuals lacking adequate remedy. Further Reading • Basic Reading – Craig and De Burca, Chapter 24 • Recommended Reading – Case 43/75 Defrenne v Sabena [1976] ECR 455 – Case C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743 • Further Reading – Crenshaw, K. (1993) "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics" from Weisberg, D.K. (ed.) Feminist Legal Theory: Foundations, pp. 383-395, Philadelphia, Temple University Press. [ELE]

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TERM 2 – The Internal Market Intended Learning Outcomes By the end of this session students should be able to: Understand the concept of economic integration in the internal market Understand the relationship between economic and social dimensions in the EU Understand the concepts of harmonization, mutual recognition and the evolution of the internal market Outline - Economic integration and the internal market - Relationship between economic and social dimensions - Harmonization and mutual recognition - Principles of the internal market - Evolution of the internal market - Conclusion

1. Economic integration and the internal market Legal basis Article 3 TEU 1.

The Union's aim is to promote peace, its values and the well-being of its peoples.

2.

The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

3.

The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.

4.

The Union shall establish an economic and monetary union whose currency is the euro.

5.

In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

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6.

The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.

Forms of economic integration

Free trade area  Agreement between States  Aiming to abolish customs duties on trade between the participants  Each member state can freely establish customs duties applying to imports from outside the free trade area  Example: NAFTA Customs union  Elimination of tariffs and quotas on trade between member States  Application of a common level of tariff on imported goods from outside the customs union Common market  Free movement of goods o Elimination of tariffs and quotas on trade between member States o Application of a common level of tariff on imported goods from outside the customs union  Free movement of factors of production o Labour o Capital o Enterprise

Economic union

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Techniques of economic integration  Negative integration: o Prohibition of national rules that hinder cross-border trade  Custom duties and charges having equivalent effect  Quantitative restrictions on import and export or measures having equivalent effect  Positive integration: o Harmonization of diverse national rules 2. Relationship between economic and social dimensions

Development of the integration in the EU  Prior to the SEA: o legislative contribution by harmonization of national legislations o Judicial contribution by the development of an important case-law  After the SEA: o New strategy based on harmonization of national legislations Article 26 (ex Article 14 TEC) 1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties. 2. 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 the Treaties. 3. The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned. Article 114 (ex Article 95 TEC) 1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, 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. Article 115 (ex Article 94 TEC) Without prejudice to Article 114, the Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market. Social harmonization  Use of general legal basis for social harmonization (now article 115 TFEU) + use of directives o Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies o Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses o Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer

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3. Harmonization and mutual recognition Harmonization ‘mutual adjustment of the core systemic qualities of a policy and thus does not require complete similarity’ Ingaill Jarensjo Montanari, ‘Harmonization of social policies and social regulation in the European Community’ (1995) European Journal of Political Research 21 Development of the internal market Completion of internal market: o Mutual recognition o Technical harmonization

Free movement = free movement of goods etc. Mutual recognition  A product lawfully marketed in one Member State and not subject to Union harmonisation should be allowed to be marketed in any other Member State, even when the product does not fully comply with the technical rules of the Member State of destination. 

Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] o Blackcurrant liquor produced in France (12% alcoholic) o Someone in Germany wanted to import it and sell in Germany – regulation stated that to have this named fruit liquor it should have at least 25% alcohol (which was the case for some liquors produced in Germany) Therefore could not import this lower abv from France. o If something is produced in one internal state why cannot it be marketed in another internal state?  RESEARCH

Technical harmonization (1)

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There were several technical standards/regulations in the member states which were quite damageable to the free trade of goods; e.g. something that would concern certificate for motor vehicles (e.g. how you should test a car before putting it into the market). Many states used to have standards for this and therefore was an obstacle for free trade of goods because a trader will have to do more to sell the car in different states – many regulations to adhere to and certificates to obtain in several different member states. Therefore EU decides to create a uniform means of testing applying to all states to remove the barriers to entry. Technical harmonization (2) Council Resolution 85/C 136/01 of 7 May 1985 on a new approach to technical harmonization and standards Four fundamental principles: 1. Legislative harmonisation is limited to essential safety requirements (or other requirements in the general interest) with which products put on the market must conform and can therefore enjoy free movement throughout the European Union; 2. The task of drawing up technical production specifications is entrusted to organisations competent in industrial standardisation, which take the current stage of technology into account when doing so; 3. These technical specifications are not mandatory and maintain their status of voluntary standards; 4. The authorities are obliged to recognise that products manufactured in conformity with harmonised standards are presumed to conform to the essential requirements established by the Directive. If the producer does not manufacture in conformity with these standards, he has an obligation to prove that his products conform to the essential requirements. Source: europa.eu 25 Technical harmonization (3) Council Resolution 85/C 136/01 of 7 May 1985 on a new approach to technical harmonization and standards Two conditions: 1. The standards must guarantee the quality of the product; 2. The public authorities must ensure the protection of safety (or other requirements envisaged) on their territory. This flags out the technical harmonisation which respects national autonomy 4. Principles of the internal market Principles  Non-discrimination  Market access  Fair Competition These are implied by mutual recognition concept.

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Non-discrimination on grounds of nationality (1) Article 18 TFEU Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. We cannot discriminate on nationality of out of state goods.

Non-discrimination and national autonomy NON discriminatory national Legislation/regulations Should be applied equally to international and national goods. In principle lawful under EU law. Except unjustified forms of discrimination

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Non-discrimination should not interfere with national autonomy. Member states should be able to legislate on the way they wish for goods and services to be regulated. In principle, national measures that are not discriminatory toward other member states are enforceable under EU law., unless they engage in indirect discrimination. Here, the legislation should be set aside unless it can be justified. Direct discrimination  Different/ less-favourable treatment on the grounds of nationality. o Overt discrimination – clear in law.  Example: requirement that imported, but not domestic, goods should comply with technical inspections Indirect discrimination  Requirements which are apparently nationality-neutral but that in reality have a greater impact on nonnationals (EU)  Example: British rule making payment by the state to cover funeral costs conditional on the burial taking place in the UK o Case C–237/94 O’Flynn[1996]  The imposition of a territorial condition, on the grant of a payment under the Social Fund (Maternity and Funeral Expenses) (General) Regulations 1987 (SI 481) to cover the costs incurred by a claimant on the occasion of a death in the family, that the burial or cremation should take place within the United Kingdom, constituted indirect discrimination against a migrant worker in respect of social and tax advantages contrary to art 7(2) of Regulation (EEC) 1612/68. Market access All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade are to be considered as measures having an effect equivalent to quantitative restrictions One should not create, as a State or Government, extra obstacles to free movement of goods. This would jeopardise the internal market o The Dassonville Formula, Case 8/74, [1974] ECR 837; [1974] CMLR 436  “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 equivalent effect to quantitative restrictions” (intention irrelevant)  Facts: Criminal proceedings in Belgium were brought against a trader who acquired a consignment of Scotch whisky in free circulation in France, and imported it into Belgium without being in possession of a certificate of origin from the UK customs authorities. This was in violation of the Belgian customs requirements, the UK at the time not being part of the customs union. Dassonville prepared its own certificate of origin and was prosecuted for forgery

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Competition  Free movement of goods between Member States under normal conditions of competition  Must respect normal conditions of competition.  In this sense, EU competition law monitors competition

5. Evolution of the internal market Objectives Article 3 (3) TEU  The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.  It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.  It shall promote economic, social and territorial cohesion, and solidarity among Member States.  It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced. Sustainable development - Sustainable Development stands for meeting the needs of present generations without jeopardizing the ability of futures generations to meet their own needs o Source: European Commission, DG environment Example: European Council EU Sustainable Development Strategy (SDS) adopted in 2006 Adopting a strategy (not harmonisation any more) o Soft law – agenda with key areas. Union should not impose any hard law in this area because States would not be happy to compromise  Clear indications promote sustainable development.  Courts would stress the protection of the environment if it is linked to an obstacle created for free movement of goods. E.g. pollution levels of cars etc Seven key priorities: 1. Climate change and clean energy 2. Sustainable transport 3. Sustainable consumption & production 4. Conservation and management of natural resources 5. Public Health 6. Social inclusion, demography and migration 7. Global poverty and sustainable development challenges Highly competitive social market economy o Example: EU 2020 Strategy Help to create free movement of goods and overcome/remove the obstacles faced. The 5 targets for the EU in 2020 1. Employment o 75% of the 20-64 year-olds to be employed 2.

Research & Development

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o

3% of the EU's GDP to be invested in R&D

3.

Climate change and energy sustainability o Greenhouse gas emissions 20% (or even 30%, if the conditions are right) lower than 1990 o 20% of energy from renewables o 20% increase in energy efficiency

4.

Education o Reducing the rates of early school leaving below 10% o At least 40% of 30-34–year-olds completing third level education

5.

Fighting poverty and social exclusion o At least 20 million fewer people in or at risk of poverty and social exclusion

Source: Communication from the commission, Europe 2020: A strategy for smart, sustainable and inclusive growth March 2010 Protection and improvement of the quality of the environment  Example: reducing greenhouse gas emissions progressively up to 2050 – relationship with free movement is that environment protection is a public interest. Initiatives:  Binding targets to reduce CO2 emissions from new cars and vans;  Supporting the development of carbon capture and storage (CCS) technologies to trap and store CO2 emitted by power stations and other major industrial installations. Area of Freedom, Security and Justice Article 3 (2) TEU The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. The UK has opted out of everything relating to this. -

-

Substance: o policies on border checks, asylum and immigration o judicial cooperation in civil and criminal matters  Relates to fighting organised crime and civil matters. o police cooperation  Main area of freedom, security and justice. Legal basis: o Article 3 (2) TEU  Freedom, Security and Justice (free movement of persons, immigration and asylum policies)  The UK have opted out of everything relating to this. o Article 4 (2) j TFEU  Shared competence – principles of subsidiarity and proportionality will apply – initiative to create a European base has been stopped by National Parliaments (including UK). o Title V (articles 67 -89) TFEU

6. Conclusion  EU internal market emphasising free trade albeit not to the exclusion of social and environmental perspectives  Achievement of internal market via principles of non-discrimination, mutual recognition, market access is an ongoign process

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 

Harmonization preferred to uniformisation in order to preserve national autonomy Challenges for the horizon 2020 and 2050 including economic growth and environmental protection – these relate to our free movement of goods.

Reading Basic Reading P. Craig and G. de Burca, EU Law. Text Cases and Materials (OUP 2011): Chapter 17 A.Kaczorowska, European Union Law (Routledge 2013): Chapter 17 ***C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013): Chapter 1 Recommended Reading M Streit and W Mussler, ‘The economic constitution of the European Community: From “Rome” to “Maastricht” (1995) ELJ 5 Further Reading ***WORKSHOP 3 READING: o J. Snell, ‘The notion of market access: a concept of a slogan?’ (2010) 47 CMLRev. 437

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Freedom of the Movement of Goods Intended Learning Outcomes • By the end of this session students should be able to: – Understand the aims and dimensions of free movement of goods – Understand the rules applying to custom duties and internal taxation Outline 1. 2. 3. 4. 5. 6.

Introduction Scope and dimensions of free movement of goods Common commercial policy Custom duties (article 30 TFEU) Internal taxation (article 110 TFEU) Conclusions

1. Introduction Legal basis Article 28 TFEU 1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries. 2. The provisions of Article 30 and of Chapter 2 of this Title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States. Implications • Customs union • Internal dimension (goods originating within the EU) • External dimension (goods originating outside of the EU but enjoying free circulation in Member States) 2. Scope and dimensions of free movement of goods

Scope of the provisions on free movement of goods • 3 conditions: – The product must be considered as a good – There must be cross-border trade between Member States – The provisions of the Treaty must apply to the person in case Goods • Definition: products that ‘can be valued in money and which are capable, as such, of forming the subject of commercial transactions’ • Case 7/68 Commission v. Italy (1968) •

Examples: – Case C-97/98 Jagerskiold (1999): paintings and works of art = yes – Case C-67/97 Bluhme (1998): animals = yes – Case C-2/90 Commission v. Belgium (1992): waste = yes – Case C-393/92 Almelo (1994): electricity = yes – Case C-275/92 Schindler (1994): lotteries= no

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Case C-137/09 Marc Michel Josemans (2010): unlawful goods= out of scope

Goods can be imported for personal or commercial use - Case 215/87 Schumacher ( 1989)

Cross-border trade • Cross-border element = necessary for the application of any provision of the Treaty on free movement of goods • Extensive interpretation by the CJEU - Case C-320/03 Commission v. Austria Addressees • The provisions on free movement of goods apply to the Member States • State: concept broadly interpreted – Examples: – Central and local government (Cases C-1 and 176/90 Aragonesa de Publicidad Exterior SA (1991) – Professional regulatory bodies supported by the State (Case 249/81 Commission v Ireland ‘Buy Irish campaign’) • Provisions on free movement of goods have vertical but not horizontal direct effect Internal dimension • Customs union: Member States create a single customs territory in which there are no customs duties, quotas or other restrictions imposed on goods been trade between them External dimension • Customs union: Member States impose the same customs duties and trade regulations on goods coming from outside the territory (outside the EU) • Common Commercial Policy 3. Common Commercial Policy

Goods from thirdcountries

Application of the common customs tariff

Free circulation in the EU

Potential conflicts • WTO LAW – GATT (products) – GATS (services) – TRIPS (intellectual property)

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CCP after the Lisbon Treaty • Exclusive competence of the EU – article 3 TFEU • Article 207 TFEU • Include direct foreign investments 4. Custom duties (Article 30 TFEU) (Fiscal Measures) Legal basis Article 30 TFEU Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature. Definition and example of customs duty C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013) 44 Definition: ‘a customs duty is a charge, determined on the basis of a tariff, specifying the rate of duty to be paid by the importer to the host state’ Example: Case 26/62 Van Gend en Loos (1963) Charges Having Equivalent Effect To Customs Duties (CEECD) Case 24/68 Commission v. Italy ‘Statistical Levy case’ (1969) - ‘Any pecuniary charge, however small and whatever designation and mode of application, which is imposed unilaterally on domestic or foreign goods when they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of articles 9, 12, 13 and 16 of the treaty, even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect or if the product on which the charge is imposed is not in competition with any domestic product’. Any Pecuniary Charge, However Small • Any pecuniary charge: Fiscal Measures • However small: No ‘De Minimis’ rule Whatever Designation and Mode Of Application • The designation and mode of application defined by the state do not matter • The CJEU has autonomy to decide and requalify a charge into CEECD (charge having equivalent effect) – Case 24/68 Commission v. Italy ‘Statistical Levy case’ (1969) – Case 39/82 Donner (1983) Imposed Unilaterally on Domestic or Foreign Goods when they cross a Frontier • Imposed unilaterally: • When they cross a frontier: article 30 TFEU applies to charges levied at the EU internal frontiers • Frontiers: can be also regional frontier, internal to a particular Member State – Example: Case C-163/90 Legros (1992) • The dock dues imposed in the French overseas departments under a system whereby a charge, proportional to the customs value of goods, is levied by a Member State on goods imported from another Member State by reason of their entry into a region of the territory of the former Member State, constitute a charge having an effect equivalent to a customs duty on imports and are prohibited by Articles 9, 12 and 13 of the Treaty, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the same State.

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Extended concept of ‘frontiers’ Case C-72/03 Carbonati Apuani Srl (2004) - A tax proportionate to the weight of goods, levied in one municipality of a Member State only and imposed on one class of goods when those goods are transported beyond the territorial boundaries of that municipality, constitutes a charge having effect equivalent to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it is imposed also on goods the final destination of which is within the Member State concerned. Even If It Is Not Imposed For The Benefit of The State • Focus on the effect of the charge • Example: a charge will be considered as CEECD (charge having equivalent effect) even if its product is used to fund additional social benefits for workers Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders (1969) Is Not Discriminatory or Protective In Effect or if the Product on Which The Charge is Imposed is not in Competition with any Domestic Product • Absolute nature of the prohibition • Standstill obligation Nature of the prohibition - Article 30 TFEU = absolute prohibition - No justifications - No derogations Permissible charges Payments for genuine administrative services rendered to the importer/exporter o Condition:  The services must confer a specific benefit on the individual importer/exporter  Case 132/82 Commission v. Belgium ‘warehousing’ (1983)  Case 18/87 Commission v. Germany (1988) Charges for inspections required by EU law o Conditions:  Charges do not exceed the actual costs of inspections  Inspections are obligatory and uniform for all products concerned  Inspection prescribed by EU law in the general interest of EU  Inspections promoting of the free movement of goods  Case 18/87 Commission v. Germany (1988) Charges falling within the scope of internal taxation: same standing as those considered under article 110 TFEU Charges for inspections required by international conventions: can escape the prohibition of article 30 TFEU o Case 46/76 Bauhuis (1977) o Case 1/83 IFG (1984) Charges for inspections required by national law: constitute CEECD (not permissible)

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Remedies - States must repay charges unlawfully levied: a restitutionary claim should be available - Except if the trader has benefit from unjustified enrichment - Relationship with national procedural autonomy subordinated to principles of effectiveness and equivalence o Case 199/82 San Giorgio (1983) o Case C-192/95 Comated (1997) o Case C-398/09 Lady&Kid A/S (2011)

5. Internal taxation (Article 110 TFEU) Legal basis Article 110 TFEU No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products. Prohibits internal taxation which discriminate against goods from other member states (protectionist measures) States are free to determine their internal taxation policies – as far as it does not jeopardise the achievement of the internal market. Nature - Fiscal rules applying internally within a Member State (article 110) - Indirect taxation – product taxation - Principle of fiscal autonomy or fiscal sovereignty Scope According to settled case-law, Article 90 EC (110TFEU) must be interpreted widely so as to cover all taxation procedures which, directly or indirectly, undermine the equal treatment of domestic products and imported products. The prohibition laid down in that article must therefore apply whenever a fiscal charge is likely to discourage imports of goods originating in other Member States to the benefit of domestic production Case C-221/06 Stadtgemeinde Frohnleiten (2007) - Case 20/76 Schöttle [1977] - Case 252/86 Bergandi [1988] - Case C-45/94 Ayuntamiento de Ceuta [1995]

Fall within the scope of article 110TFEU: o Fiscal levy that would discourage imports of goods originating in other member states o Tax imposed on the use of products (not only on products)  Case 252/86 Bergandi (1988) o Fees for health inspections  Case 29/87 Denkavit (1988) o Fees for roadworthiness testing of cars

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 Case 50/85 Schloh (1986) Charge on a necessary service associated with the product  Case C-221/06 Stadtgemeinde Frohnleiten (2007)

Content - Discriminatory taxation of similar goods (national and EU): example beer - Discriminatory taxation of goods in competition (national and EU): example: beer and wine Similar goods - Prohibition of imposition of higher tax on goods imported than on similar domestic goods -

Similar products

≠ (not equal to) strictly identical products

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Similarity: o Formal test (products with same fiscal, customs or statistical classification) o Broader test (factual comparison of the products + economic analysis of their use) Examples: - Case 168/78 Commission v. France ‘tobacco’ (1980): dark and light tobacco cigarettes - Case 106/84 Commission v. Denmark (1986): fruit wines and wines made from grapes - Case 243/84 Johnnie Walker (1986): whisky and fruit liqueur Discrimination - Direct discrimination : less favourable treatment of imported goods on the grounds of its origins o Examples:  only the imported product is subjected to tax: Case 57/65 Lutticke (1966)  The imported product is taxed at a different rate (higher than the rate applied to domestic product): Case C-90/94 Haahr Petroleum (1997) - Directly discriminatory tax = breach art 110 TFEU (NO JUSTIFICATION) Reverse discrimination: when national law treats domestic products less favourably than imported products

Permitted by the treaty

Indirect Discrimination

Objective justification of indirectly discriminatory tax :

Unconnected with the origin of the product

National interest

Pursues a legitimate objective recognized by the EU The measure is proportionate

Example: Case 132/88 Commission v Greece (environmental protection)

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Environmental protection was an objective which can be seen legitimated and the measure was seen as proportionate.

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Indirect discrimination: a measure that makes no reference to the origin of the goods in law, but that imposes in reality (in fact) less favourable treatment to imported goods Example: – Case 168/78 Commission v. France ‘tobacco’ (1980): dark and light tobacco cigarettes – Case 112/84 Humblot (1985): French car tax Indirectly discriminatory tax: breaches art 110 TFEU UNLESS OBJECTIVE JUSTIFICATION (conditions)

•

•

Goods in competition - Goods that are not sufficiently similar but that can be in competition - Tests that the court applies: o Economic test (cross-elasticity of demand + substitutability) o Manufacture and composition of the product o Consumer preference (present and future) - Effects of tax: indirect fiscal protectionism o Example: Case 170/78 Commission v. UK (1983)  Court of Justice stated:  […] for the purpose of measuring the possible degree of substitution, it is impossible to restrict oneself to consumer habits in a member state or in a given region. In fact, those habits, which are essentially variable in time and space, cannot be considered to be a fixed rule; the tax policy of a member state must not therefore crystallize given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them. The Court of Justice has used a number of different tests to determine whether goods are in competition. Sometimes the Court has applied an economic test based on the cross elasticity of demand. However the Court will also take a range of other factors into account.  In the late 1970s the UK government imposed a higher rate of tax on wine than it did on beer. Wine was taxed at £3.25 a gallon whereas beer was taxed at 61p a gallon. In terms of production it was clear that the veast majority of wine consumed in the UK was produced in France Germany and Italy wheras beer was largely made in the UK. The Commission challenged this arguing UK was in braech of Art 90.  The UK argued that the products were neither similar under art 90(1) or in competition with one another under art 90(2).  The ECJ agreed that the producst were not similar in view of the different manufacturing processes and the natural properties of the respective drinks.  However the ECJ held that the products were in competition with one another and thus UK had breached Art 90”92). The reasoning is as follows:  The Court considered whether consumers would substitute one product for another- that is drink wine instead of beer. The Court didn’t just consider whether existing consumers would substitute the producst but also whether future future consumers could substitute a product and stated that . Eventually the ECJ ruled that there was a comptitive relationship between beer and the most accessible wines (lightest and the cheapest)

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Beer and wine saga continues - Case C-167/05 Commission v Sweden (2008) o Sweden was found not to be in breach of article 110 TFEU o Products not considered to be in competition within the market Para-fiscal charges - Para-fiscal tax is a tax levied for specific purpose. o A tax on a specific product or service by which a government raises money for a specific purpose. The money raised is usually paid to a body other than the national tax authority. Source: Q Finance Dictionary - May fall under article 30 TFEU or 110 TFEU depending on the extent to which the charge is offset Remedies - Article 110 (1) TFEU: elimination of the discrimination • Equalizing the taxes imposed on domestic and imported goods • Extending the benefit enjoyed by domestic goods to imported goods • Levelling down the benefits (domestic goods loosing the benefits) •

Article 110 (2) TFEU: State must remove the protective effect from its taxation rules – Does not impose equalization of taxes • Example Case 170/78 Commission v. UK (1983)

Summary

National rules on taxation Unrelated to origin of products? yes No breach of article 110 TFEU Conclusions (next page)

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Free movement of goods in general:

The product must be considered as a good

There must be crossborder trade between Member States

The provisions of the Treaty must apply to the person in case

Internal dimension: custom union (inter EU)

External dimension: common commercial policy (third-country goods)

No customs duties or CEECD

Common Customs Tariff

Article 30 TFEU : crossborder fiscal barriers to trade

Article 110 TFEU: fiscal rules applying internally

Absolute prohibition

May be justified under certain strict conditions

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Freedom of the Movement of Goods II Non-Fiscal Measures Quantitative Restrictions and Measures having Equivalent Effect ILOs •

Students should be able to: – Understand the regime applicable to non-fiscal measures in EU law – Understand the differences between quantitative restrictions and measures having equivalent effect – Fully master the scope of relevant case-law

Outline 1. Introduction 2. QR 3. MEEQR A. Definition B. Distinctively applicable measures C. Indistinctively applicable measures 4. Derogations and justifications

1. Introduction Legal Basis Three main articles: • Article 34 TFEU (imports) • Article 35 TFEU (exports) • Article 36 TFEU (derogations) Articles 34 and 35 TFEU Article 34 (ex Article 28 TEC) - Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States Article 35 (ex Article 29 TEC) - Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States. Article 36 TFEU Article 36 (ex Article 30 TEC) Case law based (exhaustive – more cannot be added) Express derogations: 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.

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Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Justifications • Case-law based (exhaustive) • ‘Mandatory requirements’ (Public interest requirements), ‘ imperative requirements’ or ‘public interest requirements’ • About an open-ended list of requirements – justifies measures on the basis of public interests. 2. QR (Quantitative Restrictions) Quantitative Restrictions Definition: Case 2/73 Geddo (1973) ‘The prohibition on quantitative restrictions covers measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’ Art 34 and 35 only announce that QR are prohibited but doesn’t define what a QR is. QR Examples • Quotas limiting the quantity of goods on import or export – Case C-47/90 Delhaise Frères (1992) • Case about the Spanish legislation import quotas on Spanish wine – found to be in breach of Article 35 (export by Spain) •

Ban on imports or exports – Case 34/69 Henn and Darby (1979) • Total ban on imports operated by the UK – import of any pornographic material from other member states • UK was not banning porn as such, just banning the selling of it coming from other states. • Court held this was a HUGE restriction on free movement of goods

•

Restrictions on specific cases of imports – Case C-170/04 Rosengren (2007) • Swedish regulation prohibition of selling alcoholic drinks by post or online. This applied to everyone except a specific Swedish company. • Experimentory – restriction on specific case of imports - considered too unfair and too restricting (QR)

Focus is on restriction of trade

3. MEEQR (Measures having equivalent effect) A. Definition: Measures Having Equivalent Effect (MEEQR) • Measures that hinder intra-state trade but cannot be qualified as QR (qualification by exclusion) • Example: – Rules on the shape, content, packaging and labelling of goods

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**MEEQR Definition Case 8/74 Dassonville (1974) ‘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’ Very important point!!!! READ MEEQR Article 35 Case 53/76 Bouhelier (1977) ‘The treaty precludes the application to intra-community trade of a national provision which requires export licences or any other similar procedure in respect of exports alone , such as the issue of standards certificates , the requirement of which constitutes a measure having effect equivalent to quantitative restrictions in so far as such certificates are capable of constituting a direct or indirect , actual or potential obstacle to intracommunity trade’ • Case on imports (Article 34) • Extends formula to relating to article 35 All Trading Rules Trading rules are measures that concern the marketing of products – they do NOT concern the production state of the product, ONLY the MARKETING. Marketing stage – Case 3/76 Kramer (1976): rules on fishing limitations = not a MEEQR • However does apply when you have already done your fishing and are selling the fish. • Rules : measures (not necessarily legally binding) – Case 249/81 Commission v. Ireland ‘Buy Irish campaign’ (1982): national ‘practice’ • Not a rule that was in place however an informal dictation. – Case 21/84 Commission v. France ‘Postal franking machines’ (1985): administrative regulations and practice Rules in the general sense. •

Enacted by Member States Enacted by the state in the sense that it can concern measures that do not directly reflect measures taken by the state but are supported morally by the state. • •

Consistent policy or practice = sufficient (no need to be ‘enacted’ by a member state) – Case 249/81 Commission v. Ireland ‘Buy Irish campaign’ (1982) Broad concept of state – **Case 266 and 267/87 Ex p. API (1989): Measures adopted by a professional body for pharmacy • Professional body was doing certification for pharmaceutical product (private/public body) • Court decided that this measure concerned the state • Article 34 would apply here • Question of horizontal direct effect. – Case 171/11 Fra bo (2012): standardisation and certification activities of a private-law body – Case C-438/05 Viking (2007): Trade unions

More Recent Formula • Case C-319/05 Commission v. Germany ‘garlic capsule’ (2007) • ‘any measures capable of hindering, directly or indirectly, actually or potentially, intra-Union trade’ [can be considered as] as an ‘obstacle’ to free movement of goods

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Direct Effect of Article 34 TFEU Article 34 has direct and horizontal effect – applies to situations in private bodies. There is an implication of restriction of market access (actual or potentially) Court will go so far as to consider whether the restriction could have a potential effect on trade. • Vertical direct effect – Case 249/81 Commission v. Ireland ‘Buy Irish campaign’ (1982) – Case 266 and 267/87 Ex p. API (1989) • Horizontal direct effect – Case 171/11 Fra bo (2012) Actually or Potentially • Potential effect on trade – Case C-184/96 Commission v. France ‘foie gras’ (1998) • French legislation on composition of product of foie gras. • Considers the need for having legislation concerning the production of foie gras. • Court said that this legislation that regulated could be considered as potentially hindering the intra-community trade. • A Member State which adopts legislation relating to preparations with foie gras as a base, reserving certain trade descriptions to products possessing particular qualities and without including a mutual recognition clause for products coming from other Member States and complying with the rules enacted by those States, fails to fulfil its obligations under Article 30 of the Treaty. • Such legislation prohibiting a product from a Member State which complies with the rules laid down by that State but which does not fully satisfy the requirements imposed by that legislation from being marketed under a given trade description must be regarded as capable of hindering, at least potentially, inter-State trade. • That legislation cannot be justified by the imperative requirements of consumer protection and the prevention of offences with respect to false descriptions. First, while it is legitimate to ensure that consumers are effectively protected by enabling them to know the real nature of products, that objective may be attained by means, other than the reservation of certain trade descriptions to products possessing particular qualities, which would be less restrictive of the marketing of products, such as affixing suitable labels concerning the nature and characteristics of the product for sale. • Second, that legislation is not proportionate to the need to prevent offences with respect to false descriptions. The mere fact that a product does not wholly conform to the requirements laid down in national legislation on the composition of certain foodstuffs with a particular denomination does not mean that its marketing can be prohibited. While the competent national authorities are entitled to monitor preparations in order to establish whether the raw materials used and the production methods are in accordance with the information on the labels and in order to bring proceedings against those responsible for selling foodstuffs which bear descriptions identical to those provided for by national legislation, but which are so different in content as to give rise to suspicion of deceit, that possibility applies only to situations in which the foodstuff coming from a Member State and complying with the rules enacted by that State departs markedly from the requirements imposed by the legislation of the State concerned. Directly or Indirectly Concerns distinctively and indistinctively applicable measures. Distinctively – same set of rules but applied in a DISTINCTIVE WAY – distinguishing by nationality

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Indistinctively – measures that in law the same set of rules would apply to everyone without mentions of their nationality or origin however maybe in effect there may be indirect discrimination, but only if one product would be treated in a less favourable way to that of another state. Obstancle to the market still created but not on the face of it. However maybe not discrimination because the rules are applied the same way. •

Directly or indirectly : direct or indirect discrimination – Direct discrimination: distinctly applicable measures – Indirect discrimination: indistinctly applicable measures • Not ALL considered discriminatory – not about discrimination but how they are APPLIED.

B. Distinctly Applicable Measures Distinctly Applicable Measures • •

Imported goods are treated less favourably than domestic goods Examples: – Imposition of an additional requirement on the imported goods (regulatory in nature) • Licence • Official certificate or approval • Inspection – Preference to domestic goods • Buy national rules • Origin marking rules – National rules limiting channels of distribution • Authorization for importers of certain goods (ex. Medicines)

Distinctly Applicable Measures (2) • Example: Case 222/82 Apple and Pear Development Council (1983) • Considers the line between state sponsored promotion of goods and…?! • Considered whether the stickers of the fruit was lawful. Courts held it was as long as three conditions were met: • Not to run advertising designed to discourage purchase of products from other member states. • Not to discourage products from other member states in the eyes of the consumers • Not to advise consumers to purchase domestic products solely by reason of their national origin. • Should not draw attention to the specific products – E.g. can advertise as NZ lamb to be good…cannot advertise French jam as bad. Case 249/81 Commission v. Ireland ‘Buy Irish campaign’ (1982) - Morally supported by Government What About? Found of Waitrose British Chicken: ‘Reared with care by farmers who share our values’ Does this mean that only British farmers share only Waitrose values? Many questions Does it promote British chicken? Does it discourage chicken from other member states? Perhaps suggests that foreign states don’t share Waitrose values?

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If it was the state running a campaign such as this then it would possibly be considered a distinctively applicable measure. Consider horizontal application direct application of article 34 - open question.

Defences for Distinctively Applicable Measures • Traditionally only article 36 TFEU can apply • Exhaustive list of defences (public morality, public security etc) • Maybe there is some movement on the ECHR case law – probably towards the distinction of mandatory requirements. • See cases in next slide. Article 36 (ex Article 30 TEC) 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. Defences for Distinctively Applicable Measures • Modern changes: towards the application of ‘mandatory requirements’? – Case C-2/90 Commission v. Belgium ‘Walloon waste’ (1992) • Rule was directly discriminatory – distinctively applicable and discriminatory – Case C-524/07 Commission v. Austria ‘roadworthiness of cars’ (2008) – Case C-54/05 Commission v. Finland (2007) – **Case C-531/07 LIBRO (2009) • The court has allowed distinctively applicable price fixing scheme Reverse Discrimination • Situation in which the domestic measure discriminate against domestic goods only • Wholly internal situation • Articles 34 and 35 TFEU do not apply • Example: Case 98/86 Mathot (1987)

C. Indistinctively Applicable Measures Indistinctively Applicable Measures (1) • Measures which in law apply to both national and EU goods but in fact have a particular burden on imported goods = same burden in law, different burden in fact • Measures introduced to protect national markets/ simply having this effect • Generally unlawful – unless justified (mandatory requirements or article 36 TFEU) • They can be justified by: • Article 36 (express derogations) • Mandatory requirements/public interest etc set by the Court of Justice (Cassis de Dijon) Indistinctively Applicable Measures (2) • Example: – Product requirements: designation, form, size, weight, composition, presentation, labelling and packaging of products – measures that would apply to any goods indistinctively (foreign, EU and domestic goods) but they do create an obstacle to the market for the importer/exporter and thus entry to the market is higher.

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For example, certain information to be on packaging required by the importing countries (0% fat, sugar) etc. Indistinctively applicable measure: • ***Cases 267 and 268/91 Keck and Mithouard (1993)

It is established by the case-law beginning with "Cassis de Dijon" that, in the absence of harmonization of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so 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. Indistinctively Applicable Measures (3) ***Case 120/78 ‘Cassis de Dijon’ (1979) • Product requirement case (composition of fruit liqueur)/ indistinctively applicable measure • Has 15-20% alcohol however national German regulations state that only fruit liquors over 25% of alcohol can be marketed. • Court found that this was in breach of article 34 TFEU and that this lies on two main concepts: – Mutual recognition – • Principle that one product that is lawfully produced for market in one state should be lawfully marketed in another state. – Market access • Rule established by Germany in this case (product specification to be more than 25% for it to be marketed) creates obstacles of market access by the French Liquor. • Court said that breach of article 34 TFEU / Can be justified by mandatory requirements: – Public health – Consumer protection – Effectiveness of fiscal supervision – Fairness of commercial transactions • National measures need to be proportionate and appropriate Indistinctively Applicable Measures (4) ***Cases 267 and 268/91 Keck and Mithouard (1993) • Court distinguished between national measures that deal with product requirements and those that dealt with selling arrangements. • Distinction: product requirements/certain selling arrangements • Some of the measures were considered to be conflicting with national sovereignty Product requirements MEEQR even if indistinctively applicable = breach article 34TFEU

Unless justified (‘public-interest objective’) or article 36 TFEU

Certain selling arrangements Not constitutive of an obstacle to intra-EU trade if indistinctively applicable and no discrimination (=NO MEEQR) Thus, escaping the scope of the prohibition set by article 34 TFEU

Pargaraph 15 and 16.

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No clear distinction as to what are CSAs and what are product requirements. Certain Selling Arrangements • CSA = certain market circumstances rules • Some examples: – National rules limiting the time at which goods could be sold : • Regulations imposing closure of petrol stations at night: Cases C-401 and 402/92 Boermans (1994) • Sunday trading rules: Case C-418/93 et al. Semeraro Casa (1996) – National rules fixing the retail price for books: Case C-531/07 LIBRO (2009) Indistinctively Applicable Measures (5) • ***Case C-110/05 Commission v. Italy ‘trailers’ (2009) • Court has not overruled Keck but did not discuss the case. • Case about a trailers and motorcycles. Authorities decided it was dangerous and the national authorities decided that on safety rules the use of trailers would be used – NOT ban on import and sale of the trailers. • Importers of this product not happy and so alerted commission. • Case went to court - not considered a QR but a ban on use of the products – ruled as a MEEQR • Court said that this could have a considerable influence on the behaviour of consumers which in turn affects the access to the market of that member state. • ‘56 It should be noted in that regard that a prohibition on the use of a product in the territory of a Member State has a considerable influence on the behaviour of consumers, which, in its turn, affects the access of that product to the market of that Member State. • 57 Consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer (…). Thus, Article 56 of the Highway Code prevents a demand from existing in the market at issue for such trailers and therefore hinders their importation. • 58 It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect is to hinder access to the Italian market for trailers which are specially designed for motorcycles and are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, unless it can be justified objectively. • 59 Such a prohibition may be justified on one of the public interest grounds set out in Article 30 EC or in order to meet imperative requirements (…). In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it.’ Courts here are considering a THIRD distinction. Any measures that is indistinctively applicable but that can hinder the potential market because it has a considerable influence on the behavior of the market it is a MEEQR. Not justified by interest requirements of Article 36 deregulations so it is a breach of Article 34. Indistinctively Applicable Measures (7)

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Case C-110/05 Commission v. Italy ‘trailers’ (2009)

Case C-142/05 Mickelsson (2009)

AG Bot opinion

AG Kokott opinion

Mickelsson (2009) – AG Kokott’s opinion was not in favour of qualifying at as a MEEQR however it was a CSA (certain selling arrangement). Court has apparently created 3 situations:

3 situations Distinctively applicable measures = MEEQR Indistinctively applicable product requirements = MEEQR unless justified (mandatory requirements or article 36 TFEU) Any other measures which hinders access to market= MEEQR unless justified (mandatory requirements or article 36 TFEU)

Leading Case in a Nutshell QUALIFICATION: Broken down into three parts: Cassis de Dijon Keck Mutual recognition Product Market access requirement/ Mandatory selling requirement arrangements

‘Trailers’ + Any other measure which hinders market access

Keck restrained Cassis de Dijon by creating a presumption of legality for certain selling arrangements considered as a new category RESEARCH ‘CATCH-ALL CLAUSE’ Trailers reintroduced the access to market clause Criticisms of ‘Trailers’: Isnt it too vague Subsidiarity – aren’t the courts going too far? Need a balance of subsidiarity and proportionality Post-‘trailers’ • Example: – Case 456/10 ANETT (2012) • Not complete ban on use of products, just that they cannot be bought in a certain way. • Measure did not have the effect of treating tobacco coming from other states less favourable (not distinctively applicable)

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Keck does not apply here Court here does not evoke certain selling arrangements. Court goes to the (CATCH ALL CLAUSE)

4. Derogations and Justification Derogations and Justifications • Derogations: art. 36 TFEU • Justifications: Case-law exceptions  Cassis de Dijon and the “mandatory requirements” Derogations – Treaty Based Art. 36 TFEU: Art. 34 and 35 shall not preclude prohibitions or restrictions 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 • The protection of industrial and commercial property Exhaustive list. Derogations – Examples • Examples of trade restrictions justified under art. 36: – Prohibition on the import of certain pornographic materials - Case 34/79 Henn and Darby (1979) – Obligation to purchase a certain quantity of oil from state-owned refineries – Case 72/83 Campus Oil (1984) • Has been justified on grounds of public policy and security and protection of national treasures Derogations – Conditions • The list in art. 36 is exhaustive • Two conditions: – The measure must not constitute an arbitrary discrimination – The measure must be proportionate • The court will scrutinise the details to find that it is proportionate and necessary. • Instead of a ban perhaps introduce other measures which would not be so intrusive. Case 34/79 Henn and Darby (1979) Justifications – Madatory Requirement Case law based justifications: • Mandatory requirements can only justify the adoption of indistinctly applicable measures • The list of mandatory requirements is not exhaustive Mandatory Requirements – Examples • Some examples: – Protection of public health – Case 178/84 Commission v Germany ‘Bier Additives’ (1987) – Consumer protection – Case 120/78 ‘Cassis de Dijon’ (1979) – **Protection of the environment – Case 302/86 Commission v Denmark ‘Danish Bottles’ (1988) – Fundamental rights – Case C-112/00 Schmidberger (2003)

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**Proportionality • Two tests: – Test of suitability (the means employed must be suitable to attend the ends – Test of necessity (weighing competing interests) • If there are other less restrictive means to produce the same result • If in absence of less restrictive means, the measure has an excessive impact on the applicant’s interests • Burden of proof: on the national authorities (establishing the measure in cause) Proportionality – Examples • Case C-265/06 Commission v. Portugal ‘tinted windows’ (2008) – Strict approach to proportionality • Case C-244/06 Dynamic Medien (2008) – ‘Margin of discretion’ left to the member state 5. Conclusions

National measure

QR

CSA

Breach art. 34 TFEU

Art. 36 TFEU derogations

No breach of art 34 TFEU if indistinctively applicable and same burden in law and in fact (+ if it does not prevent or hinder access to market?)

MEEQR

Distinctly applicable

Indistinctly applicable/ product requirements

Any other measure which hinders market access

Breach art. 34 TFEU

Breach art. 34 TFEU

Breach art. 34 TFEU

Except art. 36 TFEU derogations (mandatory requirements?)

Except justifications (mandatory requirements) or art. 36 TFEU derogations

Except justifications (mandatory requirements) or art. 36 TFEU derogations

Further Reading • •

•

Basic Reading • P. Craig and G. de Burca, EU Law. Text Cases and Materials (OUP 2011): Chapter 19 • A. Kaczorowska, European Union Law (Routledge 2013): Chapter 19 Recommended Reading • C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013): Chapters 4, 5, 6 • S. Enchelmaier, ‘Moped Trailers, Mickelsson & Roos, Gybrechts: The ECJ’s case law on good keeps on moving’ (2010)29 YEL 190 Further Reading

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E. Spaventa, ‘Leaving Keck behind? The Free Movement of Goods after the Rulings in Commission v Italy and Mickelsson and Roos’ (2009) 34 ELRev 914. J. Snell, ‘The Notion of Market Access: A Concept or a Slogan?’ (2010) 47 CMLRev 437.

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Free Movement of People Intended Learning Outcomes • By the end of this session students should be able to: – Understand the aims and dimensions of free movement of persons in the EU – Understand the treaty provisions and secondary legislation applying to free movement of persons Outline 1. Introduction 2. Scope of application 3. Scope of prohibition 4. From free movement of workers…to free movement of persons 5. Conclusions 1. Introduction Legal basis Article 45 TFEU 1) Freedom of movement for workers shall be secured within the Union. 2) Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3) It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. 4) The provisions of this Article shall not apply to employment in the public service.

Aims Workers are factors of production (as are services and capital) and this is part of creating the internal market.

The economic goal is a win-win theory – the equilibrium allowed for workers etc through free movement helps all MS work.

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Solidarity and Impact of Enlargement • Large influx of cheap labour migration from Eastern European countries after 2004 and 2007 enlargements? Fear that they would drive down wages. • According to the Commission: NO REAL IMPACT/ MINIMUM IMPACT on wages and employment of local workers: – European Commission, ‘The impact of free movement of workers in the context of EU enlargement’ COM(2008) 765. There are implications of movement of workers eg it creates a social need i.e. more schools and infrastructure in a country. Also creates jobs etc etc. (more schools – more teachers and builders etc etc although much debate about this) Article 7 Directive 2004/38 Right of residence for more than three months Conditions for the exercise of free movement of citizens: (c) All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: a) are workers or self-employed persons in the host Member State; or b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and – have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. Scope of Application Conditions of application of treaty provisions on free movement of persons • Personal scope • Material scope • Territorial scope • Direct effect of treaty provisions For EU law to apply, the provisions should follow within the scope of EU law. Personal Scope If compared with free movement of goods, the goods would have monetary value etc. Here it is the same but with people. Conditions are laid out: • Elements: – National of a member state • Case C-135/08 Rottman (2010) – Rottman was an Austrian national by birth, who acquired German nationality by naturalisation.

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He lost the Austrian nationality. However the German authorities discovered that the process of acquisition of this nationality was done in such a way that it was fraudulent and decided to withdraw his nationality. – Problem was that he was then left with no nationality – also no EU membership. – Court decided that he would not automatically recover the Austrian nationality, the decision which left him stateless should be taken in conformity with EU law. – HELD – decision to be taken in proportionate way. MS can (in principle) decide on the conditions of acquisition and loss of nationality. However, if there is a withdrawal of naturalisation, this would lead to the loss of EU citizenship. This concerns EU law and becomes complex. Principle of proportionality would apply here. –

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Economic activity • If required (notably for companies) • EU citizens do not need to be economically active to benefit from free movement – Case C-413/99 Baumbast (2002) • Personal scope – question of who can benefit from the rules of free movement of persons (what sort of person?)

Material and Territorial Scope • Inter-State element – Moving the residence to another member state – Residing in a member state and working in another member state (frontier workers) 

Exercise of free movement in the present or in the past (i.e. a person could have exercised their right to free movement before coming back to the state of origin) o Case C370/90 Singh (1992)  E.g. Indian national married to a British citizen were living in Germany and working.  Singh had issues with immigration when they moved to the UK  HELD- Mrs. Singh had exercised her rights to free movement and this extended the right to Mr. Singh.

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Link to situations governed by EU law

Wholly Internal Situation • Situations in which all the aspects are confined in a single MS – the EU law cannot apply. • Free movement provisions do not apply to wholly internal situations (in which all the aspects are confined within a single member state) – Case 20/87 Gauchard (1987) • French supermarket that was prosecuted because they were working in the building without the authorisation to do so. • They manager decided to appeal against this decision arguing that this decision of the authorities was in breach of EU law. • Court decided that this was a wholly internal situation (there could be nothing linked to outside of France here) • Therefore, only French law applied. –

Case C-299/95 Kremzow (1997) • Free movement of persons cannot potentially be hindered – different to free movement of goods as saw before (main word being potentially) • Application of law norrowed in this case • Kremzow was sentenced to life imprisonment for murder. • He appealed and argued that life sentences are contrary to EU law because it potentially hinders his free movement.

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Appeal not allowed!

Abuse and Fraud • EU law does not apply in case of abuse of rights or fraud – Case 109/01 Akrich (2003) • Invoking EU law provisions • “there would be an abuse if the facilities afforded by Community law in favour of migrant workers and their spouses were invoked in the context of marriages of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member States”

Reverse Discrimination

Here you would have reverse discrimination – however EU law would not apply to these cases. Direct Effect Scope of application is a question of direct effect – need this for EU law to be applicable. • Article 45 TFEU is directly effective • Vertical direct effect: – Case 167/73 Commission v. France ‘French merchant seamen’ (1974) – Case 41/74 Van Duyn (1974) • Case of provisions of the treaties can have a direct effect (Article 45) • Lady was a member of scientology church and wanted a job in UK with them- her entry to country was denied and was removed to her country of origin. • She argued that this was contrary to EU law (article 45 – free movement of workers) • Court held that yes the article 45 had direct effect. •

Horizontal direct effect? – Article 45 does also have horizontal direct effect if a fundamental principle of non-discrimination is breached. • Case C-350/96 Clean Car (1998) • Case C-281/98 Angonese (2000) • Job applications for private bank in Italy that were conditioned on a certificate of bilingualism from the local authorities. • Difficult for non-Italian applicants to obtain this certificate if they could not reside in this province in Italy • Court affirmed that because the principle of non-discrimination was clearly breached, they would evoke Article 45 TFEU.

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3. Scope of Prohibition Treaty Provisions Three prohibitions:

They are normally in breach of Article 45 unless they are expressly derogated or justified. Refusal of Exit, Entry and Expulsion (1) • Refusal by the home state to allow a national to leave its territory (normally you are entitled to leave) – Case C -33/07 Jipa (2008) • Refusal by a host state to allow a EU citizen to enter its territory (free movement usually allowed) – Case 41/74 Van Duyn (1974) • Scientology case • Deportation of an EU citizen by a host state (normally some guarantees against deportation) – Case 30/77 Bouchereau (1977) In principle, these measures are in breach with EU law – there are some excpetions. These measures can be saved only by referce to one of the express derogations found in Article 45(3) Refusal of Exit, Entry and Expulsion (2)

Courts look at the balancing of public interests and protection of individual rights. Case C-100/01 Olazabal (2002) – Case of supposed terrorist in France. – Ban from part of the French territory because of defendant’s links with terrorist activities. – He evoked that these measures adopted by the authorities were too restrictive of his free movement – HELD – a measure like this can be justified under certain conditions:  Such action is justified by reason of order and security based on the individual’s conduct,

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 Those reasons are serious Allowed because the ban was only partial

These measures can only be saved (as they are in breach) by express derogation. Direct Discrimination (1) Article 45 (2) TFEU Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment (National measures that are directly discriminatory are in principle in breach of EU law Article 45 (2) unless they can be justified on grounds of express derogation.) Article 18 TFEU Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

Direct Discrimination (2)

Some types of employment can be reserved for nationals. Case 149/79 Commission v Belgium (1980) - HELD – within the scope of 45(4) - The post had a link to national service but according to the court, not enough so cannot be reserved for nationals. Only posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state or other public authorities can be considered as reserved to nationals only. Example: Ministries like foreign affairs – people who deal with security, high profile work then in this case the post will be considered as falling within the scope of article 45 (4). Can this rule apply to the private sector? Case C-405/01, Colegio de Oficiales de la Marina Mercante Espanola ECR (2003) - HELD – NOT within article 45(4)

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(Marines) Question of whether the posts of captain and chief maid on ships which fly the national flag be considered as reserved to nationals only or whether they should be open to any EU citizens. HELD – MS may reserve these positions only if the rights conferred under public law on these positions are actually exercised on a regular basis and do not represent a very minor part of their role

If there is real exercise of the public powers conferred by public law in the safeguard interest of the MS then the job will be reserved. Not all the posts provided by public function of a state would fall within the scope of prohibition (article 45(4)) Difficulty is that the area of public service is very large. Indirect Discrimination (1)

Bickel and Franz (1998) - Case about Italian rules on Criminal proceedings – at this time, proceedings were conducted in the language of the State, not in the language of the person concerned. - Court decided that this is not right – incompatible with the general principle of non-discrimination as it would favour the nationals of the member state and would hinder the free movement of the individuals and the access to the labour market. - However, in law there was no mention about nationality but making the proceedings be held in the language of the region was discriminatory. - In principle, this would be in breach of EU law. - However, measures like this can be saved by express derogations: (see next slide)

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Non exhaustive list – proportionality and respect for human rights will be scrutinized by the courts. Case law based and open ended imperative requirements. Similar to free movement of goods. Non-Discrimination and Market Access Measures that are not discriminatory however they still hinder market access. • In principle non-discriminatory measures should not breach EU law • Except if they substantially hinder access to the (labour) market – Transposition of the Trailers case (free movement of goods) to the free movement of persons **Case C-415/93 Bosman (1995) - Belgian national who was employed by a team in Belgium and he wanted to move to a French team. - Problem with transfer of certificate which had been sent to the French football association. - For a period of time he was left without a club. - 2 questions were considered: o Reason why he has not had his job in the French club because there was a genetleman’s agreement (3+2 rule) which means that there can be 3 foreign members in a team and 2 which are acclimatised. Rule imposing a quota for foreign football players in each match. o According to the federation rules, when a contract expires with a club:  A) the footballer could not play for the second club until his registration had been released from the first club  B) this required the second club to pay a transfer fee to the first club. o HELD – here, these rules were not discriminatory because they applied equally to all MS and clubs – not specific here to this team or country etc. o However, the court concluded that the transfer rules ‘directly affect player’s access to the employment market in other MS and for this reason these rules are capable of impeding or hindering free movement of workers.’ o HELD – in breach of Article 45 TFEU. This decision was confirmed in: Case C-325/08 Olympique Lyonnais (2010)

These kind of measures can be justified by:

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Bosman changed the working of football forever:

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4. From Free Movement of Workers….to Free Movement of Persons Legal Basis

Definition of Workers (1) *Case 66/85 Lawrie-Blum (1986) - What or who can be considered as a worker: o '[the] essential feature of an employment relationship... is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration'

Definition of Workers (2) Case C-197/86 Steven Malcolm Brown (1988) A worker is a person who pursues an activity which is effective and genuine, with the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary This is relevant because in some cases it would be very important to be able to situation the problem within the scope of article 45 or not. Definition of Workers (3) Case C-456/02 Trojani (2004) - Trojani provided services for the National Army for 30 hours a week as part of a programme aiming to reintergrate him in the society. - Problem was the question – is rehabilitation work, work? Thus, can Article 45 apply to the case? - Case defined worker as in Steven Malcolm Brown and in the case the court did not really answer the question. - Leeway application of subsidiarity. - The court here used EU citizenship to say that because he is a union citizen, he can benefit from rules on non discrimination on grounds of nationality. o If activities constitute merely rehabilitation or integration for the person concerned, this cannot be regarded as a real and genuine economic activity. The national court has to examine whether the services performed are regarded as forming part of the normal labour market o If activities constitute merely rehabilitation or integration for the person concerned, this cannot be regarded as a real and genuine economic activity. The national court has to

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examine whether the services performed are regarded as forming part of the normal labour market

Rights

Van Duin case

Jobseekers

aka Citizens’ Rights Directive

EU Citizenship and Non-Discrimination (1) Case C-85/96 Maria Martínez Sala (1998) A national of a Member State lawfully residing in the territory of another Member State comes within the scope ratione personae of the provisions of the Treaty on European citizenship and can rely on the rights laid down by the Treaty (…)not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty. Court ruled that Nationals of MS can rely on their European citizenship for protection against discrimination on the grounds of nationality by any other MS but that residents permit can only

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have declaratory and prohibitive force with regards to recognition of rights to residence even through states can impose certain conditions for that but they should not suffer from discrimination on the grounds on nationality within the scope of application of the treaty. EU Citizenship and Non-Discrimination (2) *C-184/99 Grzelczyk (2001) This is the first time the court defined the Union citizenship as : Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. EU Citizenship and Non-Discrimination (3) Case C-224/98 D’Hoop (2002) Nationals returning to their member state of nationality should not also suffer from any discrimination on grounds of nationality. EU Citizenship and Non-Discrimination (4) Case C-209/03 Bidar (2005) Member States may require students to guarantee that they have sufficient financial funds, so they will not become an unreasonable burden. However they may not require that those funds cover the entire period of stay. 5. Conclusions

Further Reading Basic Reading P. Craig and G. de Burca, EU Law. Text Cases and Materials (OUP 2011): Chapter 21 Recommended Reading A. Kaczorowska, European Union Law (Routledge 2013): Chapter 23 C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013): Chapters 8 and 9 Further Reading European Commission, ‘The impact of free movement of workers in the context of EU enlargment’ COM(2008) 7

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Freedom of Establishment and Freedom to Provide and Receive Services Intended Learning Outcomes • By the end of this session students should be able to: – Understand the aims and dimensions of freedom of establishment in the EU – Understand the treaty provisions applying to freedom to provide and receive services in the EU – Understand the derogations to freedom of establishment and freedom to provide and receive services Outline 1. Introduction 2. Freedom of establishment A. Freedom of establishment of individuals i. Professional qualifications and mutual recognition of diplomas B. Freedom of establishment of companies 3. Freedom to provide and receive services 4. Conclusions

1. Introduction Legal Basis Part of Freedom of Persons Freedom of Establishment – Article 48 TFEU Freedom to Provide and Receive Services – Articles 56 and 57 TFEU Aims Aim is completion of internal market.

The Difference Between Service and Establishment • Establishment = ‘stable and continuous basis’ (Art. 49 TFEU) – Someone who moved from one country to another and established themselves there, working in a stable and continuous basis. • Services = temporary nature (Art. 56 TFEU) (providing or receiving services) – ‘periodicity, continuity and regularity’ – Case C-55/94 Gebhard (1995) – Case C-215/01 Schnitzer (2003)

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2. Freedom of Establishment Legal Basis Article 49 TFEU Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital. Two main areas:

A. Freedom of Establishment of Individuals Self-Employed Nationals (EU) nationals wishing to pursue activities of an industrial or commercial character, activities of craftsmen or activities of the professions in a Member State Case C-257/99 Barkoci and Malik (2001) Case C-268/99 Jany (2001) Different provision for self-employed workers because they are not covered by Article 45 – movement of workers. They cannot be considered as workers.

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Rights As well as right to equal treatment, self-employed nationals also have:

Rights of Departure, Entry and Residence • Right of departure: A State should not create obstacles to the establishment of one of its own nationals in another Member States • Right of entry: in another Member State in view of establishment • Right of residence: under conditions (resources notably) * E.g.: Prohibition of registration of EU migrants as a condition to obtain right to residence - Case C363/89 Roux (1991) • Conditions can be used but they have to be necessary and proportionate. Right to Access to Self-Employment in the Host State Need to distinguish between the two: • Primary establishment: an individual leaves its State of origin to set up permanent establishment in the host State – E..g establishing yourself permanently after graduation etc. • Secondary establishment: an individual maintains an establishment in the State of origin while setting up a second professional base in the host State – E.g. having a branch of your company in another country Case 107/83 Kloop (1984) • German National wished to practise as a lawyer in France. • French rules at the time required an affiliation with the Bar AND you have to reside in the area and be a member of Chambers. • Held- Breach of Article 49 • BUT because of proportionality of the measure, it was said that it is in the interest of good administration of justice that French Authorities are justified to require lawyers to abide by its rules of ethics of practise • However courts found here that the requirements were not proportionate as another kind of measure could be less intrusive such as using telecommunications and modern transport etc – requiring residence in France was not proportionate as there are other means (too restrictive)

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Right to Equal Treatment (with nationals)

Nationals should be treated the same or similar in another MS as it would in their own MS. Discrimination Can be direct or indirect.

Examples • Case 2/74 Reyners (1974) = direct discrimination • Belgium legislation prevented qualified Dutch lawyer practising in Belgium on the grounds of his nationality. • Breach of Article 49 and no derogations – measure was not proportionate •

Case 292/86 Gullung (1998) = indirect discrimination = objectively justified • French rule requiring that all lawyers should be registered at the Bar before practising in France. • Indirect as it prevents foreign nationals practising – they would have to qualify twice • HELD – not in breach of Article 49 – moral and ethical principle and proportionality allowed for this to remain.

Restriction on Free Movement Transposition of these cases from free movement of goods to free movement of persons (very similar) • ‘restrictions’ approach = emphasis on the restrictions on free movement (rather than on elimination of discrimination solely) • ***Case C-55/94 Gebhard (1995) • However, mere differences between national rules are not sufficient to constitute a restriction = • **Case C-565/08 Commission v Italy ‘maximum fee for lawyers’ (2011)

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Difference was how much a lawyer could charge –because of the difference in regulations between different MS for fees; it was not attractive/of interest to establish one’s self in Italy to practise HELD – this was not a question that would entail a question of free movement of persons

Even though the court has moved to a more restrictions approach – the reason for this is different to the free movement of goods. Court has adopted restrictions approach rather than elimination of discriminations only because in Gebhard, this measure was indistinctively applicable – there was no indirect or direct discrimination but still the court considered that this Italian measure would hinder the free movement of self employed workers. Gebhard has a very narrow interpretation differently to the free movement of goods – here restrictions cannot be only a mere difference between national rules – not sufficient to constitute a restriction. Approach based more on restrictions that elimination of restrictions. **Case C-55/94 Gebhard (1995) • A German national had no Chambers in Germany of his own but he worked as an independent collaborator in Germany. (he was qualified) • Moved to Italy and worked as a collaborator there, again no Chambers, and later as an associate of Chambers in Milan. The Italian Authorities began disciplinary proceedings against him – says he was practising as ‘qualified’ but he wasn’t – he wasn’t qualified in Italy. • HELD – • “It follows… from the Court[‘s case law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: • they must be applied in a non-discriminatory manner; • they must be justified by imperative requirements in the general interest; • they 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.” • Access to market restriction set forward by the court • Conditions are qualified.

Derogations Article 52 TFEU

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1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health. These are the grounds for express derogations – exhaustive list. Justifications Case C-55/94 Gebhard (1995) Measures should comply with four conditions in order to be justified: 1. they must be applied in a non-discriminatory manner; 2. they must be justified by imperative requirements in the general interest; (case law based e.g. protections etc) 3. they must be suitable for securing the attainment of the objective which they pursue; 4. and they must not go beyond what is necessary in order to attain it. If these conditions are not met then you would have a national measure which is in breach of Article 49. i. Professional Qualifications and Mutual Recognition of Diplomas Professional Qualifications (1) • Direct Effect – Reyners (1974) (Article 49 is directly effective) clear, precise and unconditional provision • Qualifications gained in another MS must be recognised in the host MS. – Case 71/76 Thieffry (1977) – Case 222/86 Heylens (1987) – Case 340/89 Vlassopoulou (1991) Professional Qualifications (2) • Directive 2005/36 7 September 2005 on the recognition of professional qualifications • Applied to either self employed and employed (freedom of establishment and free movement of workers) • Codified the case law in this area. Professional Qualifications (3) • LAWYERS • Directive 98/5 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained • Codifies the courts rulings. • Freedom of establishment or freedom to provide services. Reverse Discrimination and Wholly Internal Situations • The Member State of origin must also recognise qualifications obtained in other Member States. • E.g. on return to MS, qualifications gained in other countries will be recognised. – Case 115/78 Knoors (1979) – Case C-118/09 Koller (2010)

B. Freedom of Establishment of Companies Legal Basis (1) Article 49 TFEU

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Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital. Legal Basis (2) Article 54 TFEU Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principle place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States. ‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit making. Assimilation between individuals and companies. Company’s seat and siège réel • When is a company ‘established’ in a MS? • Case 270/83 Commission v France ‘tax credits’ (1986) • *Case C-212/97 Centros (1999) – Company formed in accordance with the law of a Member State – Has its registered office there – Principal place of business somewhere in the EU – Established in the first MS within the meaning of the Treaty – Even if the company conducts no business of any kind in that MS: Case 79/85 Segers (1986) Rights Conferred on Legal Persons • Right to set up and manage undertakings (companies or firms) = primary establishment • Right set up agencies, branches or subsidiaries = secondary establishment • Assimilation of the position of legal persons with that of natural persons= article 54 TFEU PRIMARY ESTABLISHMENT: Right of Departure (1) Case 81/87 Daily Mail (1988) • British company associated under English law. • Was registered in London. • When selling a large part of the company, it transferred its HQ to the Netherlands to avoid UK tax. • HELD – no rights to transfer without restrictions or impedements. • Measure of British Authorities to not give approval for transfer was seen as justified under EU law. • No absolute right to transfer Assimilation with natural persons = not total Articles 49 and 54 TFEU do not confer an absolute right to transfer (it is subjected to restrictions and or impediments) = e.g. tax liability

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Right of Departure (2) Case C-210/06 Cartesio (2008) – 2 situations: • Where the seat of the company incorporated under the law of one member state is transferred to another member state with no change as for the law governing the company = matter falls out of the scope of EU law = national law will decide • As in Daily Mail and Cartesio (very similar in nature) • Where a company governed by the law of a member state moves to another member state and the law applicable is the law of the later = the member state of origin cannot prevent the company from moving • Total move • The court said the MS of origin cannot prevent the company from moving – breach of Article 49. Therefore, the MS of origin cannot prevent movement. SECONDARY ESTABLISHMENT: Right of Departure (3) Case C-200/98 XAB and YAB (1999) • The situation would be different if the company only seeks to establish a branch , agency or subsidiary in the host member state (secondary establishment) • Broader approach taken • In this case the member state of origin should not hinder the establishment in another member state of a company incorporated under its legislation Right to Access to the market of the host State • Right to set up and manage undertakings (companies or firms) = primary establishment • Right set up agencies, branches or subsidiaries = secondary establishment – Case C-1-1/94 Commission v Italy ‘Foreign Securities Dealing’ (1996) – Case 79/85 Segers (1986)

Equal Treatment Article 55 TFEU Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 54, without prejudice to the application of the other provisions of the Treaties. Derogations • Same rules applying to freedom of establishment of individuals (article 54 TFEU = assimilation) 3. Freedom to Provide and Receive Services Legal Basis Articles 56 TFEU Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.

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The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union. Legal Basis (2) Article 57 TFEU Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. ‘Services’ shall in particular include: (a) activities of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; (d) activities of the professions. Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals. (Basically an exclusion clause) Legal Basis (3) • Directive 200/123 12 December 2006 on services in the internal market • Make distinction between establishment and services. • Goal behind directive is to increase free movement of services within EU Direct Effect 1. Vertical Direct Effect Case 33/74 Van Binsbergen (1974) - Since 1974: • “Accordingly, the reply should be that the first paragraph of article 56 and the third paragraph of article 57 have direct effect and may therefore be relied on before national courts, at least in so far as they seek to abolish any discrimination against a person providing a service by reason of his nationality or of the fact that he resides in a member state other than that in which the service is to be provided .” 2. Horizontal direct effect? - Case C-438/05 Viking Line (2007) - **Case C-341 Laval (2007) Concern trade unions and other companies. Not possible to be entirely sure as to the extent of the application of horizontal direct effect. Scope of Application (1)

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Otherwise we would be under freedom of establishment (which is permanent in nature) Scope of Application (2) • Economic nature: expansion to activities such as – The court has extended the application of Article 56 and first part of Article 57 to include: • Transmission of television signal: Case 155/73 Giuseppe Sacchi (1974) • Sporting activities: Joined cases C-51/96 and C-191/97 Deliège (2000) • Insurance services: Case C-118/96 Safir (1998) •

Lawfulness: – Abortion: Case C-157/99 Grogan (1991) – Drugs: Case C-137/09 Josemans (2010) • Municipal legislation that restricts access to coffee shops in Netherland to locals only. • Court defended for the need for service to be lawful.

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Services must be commercial and must be for remuneration (more possible if a non-profit organisation): – Case C-70/95 Sodemere (1997) – Case C-275/92 Schindler (1994) – Case 352/85 Bond van Adverteerders (1988) – Case C-157/99 Smits and Peerbooms (2001) Concerns how the service is being provided against the remuneration.

Remuneration does not have to come from the recipient of the service, as long as there is remuneration. Scope of application meaning that you need to identify these elements to see if Articles 56 and 57 apply. Also need to have an interstate or cross-border nature. Scope of Application (3) • Inter-state or cross-border element. Need to have at least 1 link to an interstate dispute: – Case 15/78 Koestler (1978) – Joined cases C-51/96 and C-191/97 Deliège (2000) • Temporary nature: – Factors as the duration, regularity, periodicity and continuity of the service are taken into consideration to determine if the person is established in a member state or if the person is only providing services there • Case C-55/94 Gebhard (1995) These two requirements mean that they fall within the Freedom to provide Services not Freedom of establishment.

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The Freedom to Receive Services Joined cases 286/82 and 26/83 Luisi and Carbone (1984) - “It follows that the freedom to provide services includes the freedom, for the recipients of services, to go to another MS in order to receive a service there, without being obstructed by restrictions, even in relation to payments, and that tourists, persons receiving medical treatment and persons travelling for the purposes of education or business are to be regarded as recipients of services.” - Has much criticism because of medical tourism - Court was generally conscious of this issue and it could create an extra burden to host MS. Here, justifications are quite strong for restrictive measures.

Scope of Prohibition

Derogations and Justifications (1) • Express derogations = article 62 TFEU ‘The provisions of articles 51 to 54 shall apply to the matters covered by this Chapter’ – I.e. same derogations which you would use for Freedom to establishment would be applied here. (freedom to provide services) • Articles 51 TFEU= exercise of official authority • Article 52 TFEU= derogations on grounds of – Public policy – Public security – Public health Exhaustive list of derogations and the court will be inclined to pay close respect to these and fundamental rights etc. Derogations and Justifications (2) • Imperative requirements in the general interest (source = case-law). Some examples: – Protection of the reputation of national markets • Case C-384/93 Alpine Investments BV (1995) – Requirement of the rules of professional conduct and the good administration of justice • Case 33/74 Van Binsbergen (1974) – Protection of consumers • Case 220/83 Commission v France ‘tourists’ (1986) • French legislation requiring insurance undertakings to be established permanently in France • Undergo procedures for authorisation by French Government to provide

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Consumer protection was the imperative requirement was considered a legitimated aim BUT the requirement of an establishment…exceeded what was be reasonable to ask in order to protect the providing of services. – Protection of workers • Case 279/80 Webb (1981) This list is not exhaustive and is case law based. Proportionality and balancing of interests is paid close attention by courts. (necessary and proportionate) •

Summary GREEN BOXES - INCLUDE PROPORTIONALITY and PROTECTION OF FUNDAMENTAL RIGHTS

Article 62 – Public order, Public Policy or Public health Specific Areas

These areas are specific (A, B and C) because the restrictions on free movement can be easily justified by these. Direct discrimination can only be saved by Article 62 referring to 52 (public policy, public order or public health) A. Posted Workers • Posted worker = ‘a person who, for a limited period of time, carries out his or her work in the territory of an EU Member State other than the State in which he or she normally works’ (Council Directive 96/71/EC) (e.g. construction) • Sometimes posted workers can be sent to a MS and choose to remain in that country due to certain regulatory differences (i.e host MS have standards lower than that of the original MS) between one state and another – social dumping. Can be EU citizens and third party nationals. They have the right to reside in MS B if they have services etc in MS A for as long as they are provided services in MS B. • Legitimate aims include: – Preserving the interests of the workforce – Ensuring good relations on the labour market

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– Must be proportionate Case C-341/05 Laval (2007) – Latvian workers legally employed were posted in Sweden. – Not submitted to rules and social agreemenet applying to Swedish workers – problem that the trade unions wanted Laval to sign an agreement with them concerning wages etc. – Laval found that they should not sign this. Trade unions called for strikes and blocked construction site. – Laval called Latvian workers back to Latvia and Laval went bankrupt. – Because of the strikes, they lost the contract etc. – (right to strike can be considered a fundamental right) – However here it allowed for social dumping. – Legitimated aims : to preserve workforce etc. See reading for this. •

B. Cross-Border Access to Health Care Regards getting reimbursement from original member state for medical service received in another MS. EU nationals may receive this without pre-authorisation (for example E111 card) • Cases C-120/95 and C-158/96 Kohll and Decker (1998) • Directive 2011/24/EU on patients’ rights in cross-border healthcare • Aimed to clarify the rights of patients with regard to right of access to cross border healthcare. • Does not apply to long term services etc. • There are procedures for reimbursement. MS of affiliation shall be reimbursed on the condition that the person has the right to reimbursement and access to treatment. C. National Direct Taxation Rules Case C-234/01 Gerritse (2003) sets out: Measures which states would put forward a national serenity order fiscal autonomy. • Restrictive tax rules may be justified on the basis of – Prevention of fraud or tax avoidance – Effective fiscal supervision – Effective collection of taxes Taxation on services – different to taxation on goods. Cannot hinder freedom to provide and receive services. However may be justified on basis as set out above. Court in proportionality control will be a little less strict.

4. Conclusion Summary

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Decide under which category the case falls based on the facts.

Freedom of Establishment Principle of non-discrimination: on the ground of nationality BUT Since Gebhard : emphasis on removal of obstacles to access to the host state’s market than to elimination of discrimination Concern: balancing the Union interests in opening up the services market/ states interests of preserving its internal models Focus: on removing obstacles to access to market (rather than on non-discrimination on the ground of nationality) Further Reading Basic Reading P. Craig and G. de Burca, EU Law. Text Cases and Materials (OUP 2011): Chapter Recommended Reading A. Kaczorowska, European Union Law (Routledge 2013): Chapter C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013): Chapters 10 and 11

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Further Reading S. Enchelmaier, ‘Always at your service (with limits): the ECJ’s case law on article 56 TFEU (2006-11)’ (2011) 36 ELRev. 615 T. Hervey and L. Trubek, ‘Freedom to provide healthcare services in the EU: An opportunity for “hybrid governance”’ (2007) Columbia Journal of European Law 623 **Jan-Jaap Kuipers, ‘The social dumping debate in Luxembourg: the Laval case before the European Court of Justice’ 4 (2008) C.S.L.R. 235

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EU Citizenship ILOs •

1. 2. 3.

4.

By the end of this session students should be able to: – Understand the rules applying to EU citizenship – Understand the relationship between EU citizenship and free movement – Master EU case-law relating to EU citizenship Outline Introduction Definition and conditions Rights and obligations A. Rights conferred by the Treaty B. Right of free movement i. Right to move and right of residence for up to three ii. Right of residence for more than three months iii. Right of permanent residence iv. Protection against expulsion v. Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health C. Members of the family of an EU citizen D. Equal treatment Conclusions

1. Introduction Legal Basis

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Aims of the EU Citizenship

Question of the engagement of political discourse. Historical Background

2. Definition and Conditions Citizenship – Concept (1) • Aristotle, Book III Politics: • Defines citizenship/ a citizen: • ‘a man who shares in the administration of justice and in the holding of office’ • ‘those who share in indeterminate office’ (indeterminate office = office of judges or of members of an assembly) • ‘he who enjoys the right of sharing in deliberative and judicial office’ Source: C. Johnson, ‘Who is Aristotle’s Citizen?’ (1984) 29 Phronesis 73 [74]

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Beginning of consideration for citizenship however here it is very limited. Citizenship – Concept (2)

Source: D. Held, ‘Between state and civil society: Citizenship’ in G. Andrews (ed), Citizenship (London: Lawrence and Wishart, 1991) 20, cited in C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013) 433 Citzenship can be considered as a three partied concept – see above Rights and duties – may be considered as rights or entitlements. Duties – contractual duties (individual and state) Membership – nationality and citizenship Participation that can be social, civic or international Citizenship – Concept (3)

Civic participation – free movement etc Political – one can vote or be elected in elections Social – contributive in taxes etc and the duty that comes. Rights to votes and representative of unions etc too. EU Citizenship – Definition Article 20 (1)TFEU Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

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This means that every person holding nationality of a MS should acquire citizenship of the EU however it means that there is no nationality of the EU as such – can be a citizen but not have nationality. Nationality is conferred by national law and NOT EU law (no EU nationality) EU Citizenship – Conditions • Every person holding the nationality of a Member State = pre-condition of acquisition of EU citizenship • There is no EU nationality • Nationality is conferred by national law – Case C-135/08 Rottman (2010) Additional Citizenship Thus the citizenship of EU is an additional one, not a replacement. (a secondary nationality) •

Citizenship of the Union shall be additional to and not replace national citizenship.

3. Rights and Obligations A. Rights Conferred by the Treaty Rights Conferred by the Treaty

Political, Civic and Social participation in the life of the community. At least the first two are here in these communities. Legal Basis (1)

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Article 21 TFEU 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. The measures adopted are secondary legislation – the Citizenship directive. Legal Basis (2) Article 22 TFEU 1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. Legal Basis (3) Article 23TFEU 1. Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall adopt the necessary provisions and start the international negotiations required to secure this protection. Legal Basis (4) Article 24 The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens' initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come. Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 227. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 228. Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 13 of the Treaty on European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language.

B. Right of Free Movement Economic Activity • EU citizens do not need to be economically active to benefit from free movement – Case C-413/99 Baumbast (2002)

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• •

Provision on the rights to citizenship and free movement has been declared as having direct effect by the court EU citizens do not need to be economically active to benefit from free movement

Fundamental Status C-184/99 Grzelczyk (2001)  EU citizens don’t need to be economically active to benefit from FM:  This is possible because: o Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.

**Directive 2004/38 (Citizenship Directive) • Merges into a single document all the legislation on the right of entry and residence of EU citizens and their families • Regulates: – the conditions in which EU citizens and their families exercise their right to move and reside freely within the Member States; – the right of permanent residence; – restrictions on the aforementioned rights on grounds of public policy, public security or public health. Directive 2004/38 Provides:

i.

Right to move and right of residence for up to three months – articles 4, 5, and 6 Directive 2004/38

Right to Move and Right of Residence up to Three Months • Article 4: right of exit • Article 5: right of entry • Article 6: right of residence for up to 3 months

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Right of Exit Article 4 1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State. 2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies. 3. Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality. 4. The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years. All union citizens with a valid ID card or Passport, and their family members who are not nationals of a MS with a passport, have the right to move to a national state. Right of Entry Article 5 Right of entry 1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. No entry visa or equivalent formality may be imposed on Union citizens. (…) [Case C-459/99 MRAX (2002)] - Codification through this case: 4

Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

Right of Residence for up to Three Months Article 6 Right of residence for up to three months 1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. 2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

ii.

Right of residence for more than three months – article 7 Directive 2004/38

Right of Residence for more than Three Months Article 7

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1.

All Union citizens shall have the right of residence on the territory of another Member State fora period of longer than three months if they: a. are workers or self-employed persons in the host Member State; or b. have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or c. – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and – have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or d. are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

29 minutes iii.

Right of permanent residence – article 16 Directive 2004/38

Right of Permanent Residence • Residence for a continuous period of 5 years • Article 16(3): temporary absences • Article 16(4): continuous absence of 2 years. • Article 17: retirement, incapacity or death. • Article 18: permanent residence of family members after 5 years residence.

iv.

Protection against expulsion – article 28 Directive 2004/38 Different Levels of Protection

Protection against Expulsion (1) • Case 30/77 Bouchereau (1977) • Case C-348/96 Calfa (1999) • Case C-100/01 Olazabal (2002) • Case C-482/01 Orfanopoulos (2004)

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Protection against Expulsion (2) Article 28 Directive 2004/38 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall 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. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: a. have resided in the host Member State for the previous ten years; or b. are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. v.

Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health – articles 27 -33 Directive 2004/38 Procedural Safeguards Article 31 Directive 2004/38 1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. 2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: - where the expulsion decision is based on a previous judicial decision; or - where the persons concerned have had previous access to judicial review; or - where the expulsion decision is based on imperative grounds of public security under Article 28(3). 3. 4.

The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

Duration of Exclusion Orders Article 32 Directive 2004/38 1. Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion. The Member State concerned shall reach a decision on this application within six months of its submission. 2. The persons referred to in paragraph 1 shall have no right of entry to the territory of the Member State concerned while their application is being considered

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Expulsion as a Penalty or Legal Consequence Article 33 Directive 2004/38 1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29. 2. If an expulsion order, as provided for in paragraph 1, is enforced more than two years after it was issued, the Member State shall check that the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any material change in the circumstances since the expulsion order was issued. Interpretation of the Directive Case C-127/08 Metock (2008) Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness Maintaining or Raising the Standard of Protection? Case C-127/08 Metock (2008) As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to strengthen the right of free movement and residence of all Union citizens’, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals

C. Members of the Family of an EU Citizen Family Members- Definition Article 2 (2) Directive 2004/38 "Family member" means: a) the spouse; b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); Family Members- Mandatory Admission (1)

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Family Members – Discretionary Admission

Family Members – Discretionary Admission (2) Case C83/11 Rahman (2012) In the light both of the absence of more specific rules in Directive 2004/38 and of the use of the words ‘in accordance with its national legislation’ in Article 3(2) of the directive, each Member State has a wide discretion as regards the selection of the factors to be taken into account. None the less, the host Member State must ensure that its legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness. Family Rights

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Abuse of Rights or Fraud Case 109/01 Akrich (2003) “there would be an abuse if the facilities afforded by Community law in favour of migrant workers and their spouses were invoked in the context of marriages of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member States” Important Case Law • Case C-109/01 Akrich (2003) • Case C-1/05 Jia (2007) • Case C-127/08 Metock (2008) • C-34/09 Zambrano (2011)

D. Equal Treatment Equal Treatment • EU citizens have the same right to work in another EU country as nationals of the EU country: – Under the same conditions – No work permit required Exceptions • Language skills: – Article 3 (1) Regulation 1612/68 – Case 379/87 Groener (1989) • New EU member states- temporary restrictions Linguistic Requirements Article 3 (1) Regulation (EU) No 492/2011 Article 3 1. Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply: a. where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or

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b.

where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.

The first subparagraph shall not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.

Equal Treatment (2)

Social Advantages and Equal Treatment (1) Case Law • Case 207/78 Even (1979) • Case 65/81 Reina (1982) • Case C-224/02 Pusa (2004) • Case C-76/05 Schwarz (2007) • Case C-544/07 Ruffler (2009) Secondary Legislation • Regulation 1612/68 – article 7 (2) • Now repealed by Regulation (EU) No 492/2011, 5 April 2011 on freedom of movement for workers within the Union • Article 7 (2) Regulation 492/2011 Social Advantages and Equal Treatment (2) Case 207/78 Even (1979) ‘the advantages which that regulation extends to workers who are nationals of other member-States are all 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 the national territory’ Social Advantages and Equal Treatment (3) Article 7 Regulation 492/2011

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4

4

A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment. He shall enjoy the same social and tax advantages as national workers.

EU Citizens and Tax Advantages • Case C-224/02 Pusa (2004) • Case C76/05 Schwarz (2007) • Case C-544/07 Ruffler (2009) EU Citizenship and Non-Discrimination (1) Case C-85/96 Maria Martínez Sala (1998) A national of a Member State lawfully residing in the territory of another Member State comes within the scope ratione personae of the provisions of the Treaty on European citizenship and can rely on the rights laid down by the Treaty (…)not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty. EU Citizenship and Non-Discrimination (2) C-184/99 Grzelczyk (2001) Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. EU Citizenship and Non-Discrimination (3) Case C-224/98 D’Hoop (2002) Nationals returning to their member state of nationality EU Citizenship and Non-Discrimination (4) Case C-209/03 Bidar (2005) Member States may require students to guarantee that they have sufficient financial funds, so they will not become an unreasonable burden. However they may not require that those funds cover the entire period of stay.

4

Conclusion

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Reading Basic Reading P. Craig and G. de Burca, EU Law. Text Cases and Materials (OUP 2011): Chapter 23 Recommended Reading A. Kaczorowska, European Union Law (Routledge 2013): Chapter 22 C. Barnard, The substantive law of the EU. The four freedoms (OUP 2013): Chapter 12 Z. Egelman, ‘The Evolution of Citizenship Adjudication in the European Union’ (2012) The Yale Review of International Studies available at: http://yris.yira.org/essays/774 Further Reading N. Reich, ‘Union citizenship: Metaphor or source of rights?’ (2001) ELJ 4 D. Kostakopoulou, ‘Ideas, norms and European citizenship: Explaining institutional change’ (2005) 68 MLR 233 C. Costello, ‘Metock: Free movement and “normal family life” in the Union (2009) 46 CMLRev. 587

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Fundamental Rights ILOs •

Outline 1. 2. 3. 4.

By the end of this session students should be able to: – Understand the development of the protection of fundamental rights in the EU by the CJEU – Understand the regime of fundamental rights in the EU post-Lisbon Treaty

Introduction Protection of Fundamental Rights through the CJEU Protection of Fundamental Rights in the EU post Lisbon Treaty Conclusion

1. Introduction

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2. Protection of Fundamental Rights through the CJEU • •

Legal protection of fundamental rights by the CJEU Fundamental rights = integral part of the general principles of law whose observance the court ensures

Response to MS • So-called Solange I-decision [BVerfGE 37, 271] • So-called Solange II-decision [BVerfGE 73, 339]

Development of the ECJ Case-Law Stauder Case 29/69 [1969] ECR 419 “Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of community law and protected by the Court” Development of the ECJ Case Law (2) • Internationale Handelsgesellschaft Case 11/70 [1970] ECR 1125 “Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the community would have an adverse effect on the uniformity and efficacy of community law . The validity of such measures can only be judged in the light of community law. In fact, the law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question. Therefore the validity of a community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure . However, an examination should be made as to whether or not any analogous guarantee inherent in community law has been disregarded. 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 .”

Development of the ECJ Case Law (3) • Nold Case 4/73 [1974] ECR 491 Fundamental rights are an integral part of the general principles of law the observance of which the court ensures. In safeguarding these rights the court is bound to draw inspiration from the constitutional traditions common to the member states and cannot uphold measures which are incompatible with the fundamental rights established and guaranteed by the constitutions of these 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 .

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Development of the ECJ Case-Law (4) • •

Wachauf Case 5/88 [1989] ECR 2609 ERT Case C-260/89 [1991] ECR I-2925

Although Fundamental Rights are primarily addressed to the EU Institutions, they are also binding on the Member States when they act within the scope of EU Law

Development of the ECJ Case-law (5) • Wachauf Case 5/88 [1989] ECR 2609 “The fundamental rights recognized by the Court are not absolute, however, but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organization of a market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights.”

Development of the ECJ Case law (6) Schmidberger Case C-112/00 [2003] ECR I-5659 “According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia , Case C260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I1611, paragraph 37, and Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25). The principles established by that case-law were reaffirmed in the preamble to the Single European Act and subsequently in Article F.2 of the Treaty on European Union (...) It follows that measures which are incompatible with observance of the human rights thus recognised are not acceptable in the Community (see, inter alia , ERT , cited above, paragraph 41, and Case C299/95 Kremzow [1997] ECR I-2629, paragraph 14). (…) In the present case, the national authorities relied on the need to respect fundamental rights guaranteed by both the ECHR and the Constitution of the Member State concerned in deciding to allow a restriction to be imposed on one of the fundamental freedoms enshrined in the Treaty. The case thus raises the question of the need to reconcile the requirements of the protection of fundamental rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, more particularly, the question of the respective scope of freedom of expression and freedom of assembly, guaranteed by Articles 10 and 11 of the ECHR, and of the free movement of goods, where the former are relied upon as justification for a restriction of the latter.” Importance of the ECHR

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Rutili Case 36/75 [1975] ECR 1219 “Taken as a whole, these limitations placed on the powers of member states in respect of control of aliens are a specific manifestation of the more general principle, enshrined in articles 8, 9, 10 and 11 of the convention for the protection of human rights and fundamental freedoms, signed in Rome on 4 November 1950 and ratified by all the member states, and in article 2 of protocol no 4 of the same convention, signed in Strasbourg on 16 September 1963, which provide, in identical terms, that no restrictions in the interests of national security or public safety shall be placed on the rights secured by the above-quoted articles other than such as are necessary for the protection of those interests 'in a democratic society '.” Other IHR Instruments Defrenne v Sabena Case 149/77 [1978] ECR 1365 “The Court has repeatedly stated that respect for fundamental personal human rights is one of the general principles of community law , the observance of which it has a duty to ensure . There can be no doubt that the elimination of discrimination based on sex forms part of those fundamental rights . Moreover , the same concepts are recognized by the European social charter of 18 November 1961 and by convention no 111 of the international labour organization of 25 June 1958 concerning discrimination in respect of employment and occupation.” Other IHR Instruments (2) Kadi and Al Barakaat Cases C-402 and 415/05 [2008] ECR I-6351 “In this connection it is to be borne in mind that the Community is based on the rule of law, in as much as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23). It is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has, moreover, already held to form part of the very foundations of the Community (see, to that effect, Opinion 1/91 [1991] ECR I-6079, paragraphs 35 and 71, and Case C459/03 Commission v Ireland [2006] ECR I-4635, paragraph 123 and case-law cited). In addition, according to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the ECHR has special significance (see, inter alia, Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I-5305, paragraph 29 and case-law cited). It is also clear from the case-law that respect for human rights is a condition of the lawfulness of Community acts (Opinion 2/94, paragraph 34) and that measures incompatible with respect for human rights are not acceptable in the Community (Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 73 and case-law cited). It follows from all those considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition

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of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. In this regard it must be emphasised that, in circumstances such as those of these cases, the review of lawfulness thus to be ensured by the Community judicature applies to the Community act intended to give effect to the international agreement at issue, and not to the latter as such.”

3. Protection of Fundamental Rights in the EU post Lisbon Treaty Charter of Fundamental Rights of the EU – BEFORE the Lisbon Treaty • Adoption : 7 December 2000 • Nature: inter-institutional document proclaimed by the Parliament, the Commission and the Council (not legally binding) • Content: contains a comprehensive list of rights, freedoms and principles Charter of Fundamental Rights of the EU BEFORE the Lisbon Treaty (2) Charter invoked by advocates-general : Source of inspiration for Advocates-General (for example opinion of the AG: Case C-340/99TNT Traco; Case C-173/99 BECTU) Charter cited by the ECJ : Reference made by the ECJ in Case C-540/03 Parliament v Council

Lisbon Treaty • Article 6 (1) TEU “The Union recognises the rights, freedoms and principles set out in the Charter of fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.” Legal Status • The Charter is legally binding • The Charter has acquired the same legal value as the Treaties. UK and Poland • Protocol on the Application of the Charter of Fundamental Rights of the EU to Poland and to the UK – Is added to the treaty. • Clarifies the application of the Charter Article 1

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1) The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2) In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law. General Principles of Law Article 6 (3)TEU: ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.‘ General Principles of Law (2) • Article 6(3) TEU acknowledges the ECJ’s case-law • ECHR = special place among other international instruments relating to Human Rights • Constitutional traditions of Member States= still a source of inspiration for the ECJ. EU accession to ECHR Article 6 (2) TEU: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties” This is the legal basis, but does raise many issues: • ECHR = is an instrument of protection of human rights in Europe • Adopted by the Members of the Council of Europe • ECHR = Established the European Court of Human Rights – Jurisdiction to interpret and monitor the application of the ECHR in the 47 MS • • •

28 MS of the EU = also parties to the ECHR Accession = of the EU as an international organisation CJEU is not equal to the European Court of Human Rights

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Institutional issues:  One judge per high contracting party rule (appointment of an EU judge?)  EU participation in the Council of Europe’s Committee of Ministers (appointment of an EU representative?)  Solutions were drafted in 2013.

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Procedural issues: (more important)  Exhaustion of domestic remedies  The EU as co-respondent – If an action is brought against a member state can the EU be a corespondent?

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Substantive issues:  Potential review of EU primary law by the ECtHR  “Bosphorus test”  Is a 2005 case in the ECHR. This was a review of domestic law  EU accession to the ECHR protocols (may turn the bosphorus as redundant.

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  • •

Autonomy of EU legal order and interpretative autonomy of the CJEU Autonomy of the EU legal order and exclusive jurisdiction of the CJEU

Draft accession agreement of the European Union to the European Convention on Human Rights http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/default_en.asp

4. Conclusion and Questions

Prior to 2000

• Judge-made law • Absence of a legally binding catalogue of Fundamental Rights

December 2000

After December 2009

• Adoption of the Charter of Fundamental Rights of EU • Absence of legal binding force

• Entry into force of the Lisbon Treaty • The Charter is legally binding Article 6 (1) TEU • EU accession to ECHR Article 6 (2) TEU

Questions • By continuing to refer to General Principles of Law, do the EU treaties enable the ECJ to provide further protection to fundamental rights (to go beyond the text of the Charter/ECHR)? • Kekovici – leading case on social protection FIND CASE!!! • • Does the EU accession to the ECHR change the nature of the protection of fundamental rights in Europe? • Does the Charter bring an enlargement of the EU’s power “through the backdoor”? • Formally, the charter should not enlarge the competences of the EU and respect for principle of attribution should be total. • Could argue that the way the court may interpret this may in fact enlarge the competences of the EU. • May the Charter be seen as a Federal Bill of Rights?

Reading Basic Reading P. Craig and G. de Burca, EU Law. Text Cases and Materials (OUP 2011): chapter 11 Institutional information about the Charter: http://ec.europa.eu/justice/fundamental-rights/charter/ Recommended Reading A. Kaczorowska, European Union Law (Routledge 2013): Chapter 8 Further Reading ***** K. Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ 8 (2012) European Constitutional Law Review 375 ***

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European Foreign Policy Cooperation Topic and purpose of this lecture The purpose of this lecture is to consider the development of cooperation between the Member States of the EU in the field of foreign policy.

(1) Post-war foreign policy and defence integration -

Four main tracks of European integration: a) economic b) defence c) foreign policy d) culture and human rights

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Post-war situation: German question and onset of the Cold War; early efforts to integrate in the field of defence (failed European Defence Community) and foreign policy (failed European Political Community); role of NATO and Western European Union (WEU) Further attempts at foreign policy coordination on an intergovernmental basis: Fouchet Plans (two contentious questions: intergovernmentalism or supranationalism, cooperation with or independence from NATO and the US) Paradox of European foreign policy cooperation: Member States must pool their resources to preserve their national influence and independence on international stage, but the more they cooperate, the more they give up their independence

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Two key ingredients to the development of European foreign policy cooperation: (i) progressive legalization: process whereby applicable standards and expectations of mutual collaboration were codified in the form of legal commitments (ii) progressive organizational development: process whereby cooperation between the Member States increasingly took place in a formal institutional setting in which international bodies began to exercise a growing range of tasks on their behalf

(2) European Political Cooperation -

European Political Cooperation (EPC): set up by Hague Report 1969 and Luxembourg Report 1970 Informal procedures aimed at coordination of national foreign policy positions; based on intensive network of meetings, relationships and contacts at all levels from Heads of State/Government to Foreign Minister and Political Directors down to working desk level Conducted outside the legal and institutional framework of European Economic Community Single European Act (1986): Article 30 SEA provides EPC with treaty basis by codifying past practices and brings limited innovation; marks origin of pillar structure; Diplomatic masterstroke: adopting a single text enabled Member States to emphasize that the EPC and Communities served the same objective, but at the same time preserve their different legal qualities (intergovernmental and supranational)

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Council had no formal role as an institution: all treaty obligations are laid on ‘High Contracting Parties’; fundamental obligation was to ‘endeavour jointly to formulate and implement a European foreign policy’ Commission has a right to be fully associated, while the European Parliament is closely associated (but in reality plays no meaningful role) ECJ has no jurisdiction over EPC but is completely excluded from the area of foreign policy cooperation (Article 31 SEA) Creation of a permanent Secretariat for EPC to ensure greater continuity

(3) Maastricht and the TEU -

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Negotiations: impact of Gulf War and collapse of Communist regimes; decision to convene IGC on political union to run in parallel with IGC on economic and monetary union; lack of clear ideas about what political union would involve; disagreements over legal nature of proposed Common Foreign and Security Policy (CFSP) Treaty on European Union (1992): includes Title V on CFSP; provisions closely reflect terms of Article 30 SEA but subject to important changes; (i) TEU sets out specific objectives of CFSP; (ii) institutional distinction between Council and Member Sates disappeared (iii) common positions and joint actions are binding on the Member States (iv) CFSP includes all questions relating to security of the Union (including military and defence questions) CFSP is not an attempt to replace individual foreign policies of the Member States; it is not an exclusive policy pre-empting the Member States from formulating and conducting their own national foreign policies EU has limited means to implement CFSP (no international legal personality or treaty-making powers, no independent personnel or financial resources) Early policy successes and failures: Yugoslavia, Russia, South Africa, Stability Pact, landmines, weapons proliferation

(4) From Maastricht to Nice -

Agenda for reforming the CFSP laid down in Article N(2) TEU (Maastricht); different positions of the institutions and Member States; Reflection Group Report (1996) Amsterdam Treaty (1997): completely overhauled Title V of TEU on CFSP Changes include provisions aimed at ensuring greater coherence and consistency (Articles 11 and 13 TEU), greater range of and better differentiation between legal instruments (joint actions, common positions, common strategies); appointment of special representatives (Article 18 TEU); treaty-making powers (Article 24 TEU); post of High Representative for the CFSP (Articles 18 and 26 TEU); strengthening provisions on defence (Article 17 TEU) Nice Treaty (2003): mainly concerned with institutional changes, but some limited amendments also made to CFSP, in particular revision of Article 17 (defence) and Article 25 (Political and Security Committee) Constitutional Treaty (signed in 2004): would have introduced far-reaching reforms to CFSP by removing the pillar structure of the Union and introducing significant institutional changes (e.g. creation of a Union

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Minister for Foreign Affairs); the substance of most of these innovations has been carried over to the Lisbon Treaty State of play before Lisbon: CFSP developed into a highly institutionalized and legalized from of cooperation during the first three decades of its existence; nevertheless, the Member States were careful to retain control over the CFSP both collectively and individually, so that the risk of conferring powers onto the institutions of the Community therefore remained relatively low This suggests that organizational development through the institutional structure of Community was possible because legalization had taken a separate path of specificity distinct from Community law

(5) The Nature of CFSP after Lisbon -

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During the four decades of its existence, European foreign policy cooperation developed into a highly institutionalized and legalized from of cooperation; nevertheless, nature and extent of EU’s competences over CFSP was not a particularly contentious because the Member States retained control over decisionmaking and the legal commitments entailed were relatively weak (compared to EC law) The treaty reform process initiated in 2001 may call into question this model of gradual change Since one of the aims of treaty reform was clarification, simplification and possible adjustment of Union’s competences, it became necessary to define in express terms EU competence in CFSP

Art. 2(4) TFEU: ‘Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy’ Two main interpretations of EU nature of competence: shared competence or sui generis - Neither interpretation says a lot about the limits or exact effect of CFSP competence: this is problematic because a) the objective of the treaty reform process was to provide greater clarity b) Union’s competence over CFSP is extremely broad (see Art. 24 TEU-L) and c) the fact that foreign and security policy is a politically sensitive area Article 24 TEU (Lisbon): 1) The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence. The common foreign and security policy is subject to specific rules and procedures. -

Declaration 13 concerning the common foreign and security policy, Annexed to the Final Act The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.

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The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States. It stresses that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security. Declaration 14 concerning the common foreign and security policy, Annexed to the Final Act

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In addition to the specific rules and procedures referred to in paragraph 1 of Article 11 of the Treaty on European Union, the Conference underlines that the provisions covering the Common Foreign and Security Policy including in relation to the High Representative of the Union for Foreign Affairs and Security Policy and the External Action Service will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State's membership of the Security Council of the United Nations. The Conference also notes that the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament. The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.

Questions 1) What forms has European integration taken following the Second World War? 2) Why did the original Rome Treaty of 1957 not cover cooperation in the area of foreign policy? a. Why did attempt to institute foreign policy cooperation before the 1970s fail? 3) How did EPC develop? What were the main features of EPC before the Single European Act? What changes did the Single European Act bring to EPC? 4) Why did the CFSP emerge? In what respects did the CFSP under the Maastricht Treaty differ from EPC? 5) What policy areas did the CFSP cover? Was the CFSP successful in the first five years of its existence? 6) What changed did the Amsterdam Treaty and the Nice Treaty introduce in the area of the CFSP? 7) In what ways did the CFSP differ from Community law? Basic Reading - Craig and de Búrca, EU Law (5th edn, 2011), Ch. 10 (‘EU International Relations Law'). - A. Sari, ‘Between Legalization and Organizational Development: Explaining the Evolution of EU Competence in the Field of Foreign Policy’, in Cardwell (eds) EU External Relations Law and Policy in the Post-Lisbon Era, TMC Asser Press, 2012, 59-95 [http://ssrn.com/abstract=1858709]. Recommended Reading - Denza, The Intergovernmental Pillars of the European Union (2006), Chs 2, 4 and 5. - M. E. Smith, ‘Diplomacy by Decree: The Legalization of EU Foreign Policy’, (2001) 39 Journal of Common Market Studies 79. - R. Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’, (2006) 43 Common Market Law Review 337. Further Reading -

J. Monar, ‘The European Union’s Foreign Affairs System after the Treaty of Amsterdam: A 'Strengthened Capacity for External Action?’, (1997) 2 European Foreign Affairs Review 413. R. A. Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’, (2000) 37 Common Market Law Review 1135. Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’, (1998) 35 Common Market Law Review 1019.

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T. Murphy, ‘European Political Cooperation After the Single European Act: The Future of Foreign Affairs in the European Communities’, (1989) 12 Boston College International and Comparative Law Review 335. A. Sari, ‘The Conclusion of International Agreements by the European Union in the Context of the ESDP’, (2008) 57 ICLQ 53 [http://ssrn.com/abstract=1317669]

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The Common Foreign And Security Policy (1)

Topic and purpose of this lecture The purpose of this lecture is to consider the legal framework of the EU’s Common Foreign and Security Policy after the entry into force of the Lisbon Treaty.

(1) The CFSP after Lisbon -

Lisbon Treaty amends rather than replaces the existing Treaties; TEU (Lisbon) and TFEU remain distinct, but they have a much closer relationship and have equal legal status. TEU (Lisbon) mostly contains the provisions on the organisation of the Union, while TFEU mostly contains the details of how the Union will operate. Both Treaties contain provisions on external action: TEU (Lisbon), Title V (General Provisions on the Union's External Action and specific provisions on the Common Foreign and Security Policy); TFEU, Part Five (The Union's External Action in areas other than the Common Foreign and Security Policy) CFSP continues to be governed largely by TEU (Lisbon) whereas other areas of EU external action are governed largely by TFEU; however, separate between what previously were first and second pillar policy areas is not complete. Common rules applicable to EU external action as a whole include rules concerning conclusion of international agreements, enhanced cooperation, legal personality and common principles and objectives of external action laid down in Articles 21–22 TEU (Lisbon).

(2) Principles and Objectives Article 21 TEU (Lisbon): 1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations. 2.

The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: a) Safeguard its values, fundamental interests, security, independence and integrity; b) Consolidate and support democracy, the rule of law, human rights and the principles of international law; c) Preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; d) Foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; e) Encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; f) Help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;

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g) Assist populations, countries and regions confronting natural or man-made disasters; h) Promote an international system based on stronger multilateral cooperation and good global governance.

(3) Institutional framework Article 24 TEU (Lisbon): 1) The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence. The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.

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Single institutional framework, single legal person European Council: identifies the Union's strategic interests, determines the objectives of and define general guidelines for the common foreign and security policy (Article 26 EU (Lisbon)). Council: Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent (Article 16 TEU (Lisbon)); Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council (Article 26 TEU (Lisbon)). President of the European Council: shall chair it and drive forward the work of the European Council, ensure the preparation and continuity of its work, endeavour to facilitate cohesion and consensus within the European Council; shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning CFSP, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy (Article 15 TEU (Lisbon)). High Representative of the Union for Foreign Affairs and Security Policy: a) conducts the Union's common foreign and security policy and contribute by his proposals to the development of that policy, which he carries out as mandated by the Council b) presides over the Foreign Affairs Council c) is one of the Vice-Presidents of the Commission and in that capacities is responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action (Article 18 TEU (Lisbon)); d) High Representative chairs the Foreign Affairs Council, contributes towards the preparation of the CFSP and ensures implementation of the decisions adopted by the European Council and the Council e) represent the Union for matters relating to the CFSP (Article 27 TEU Lisbon).

European External Action Service: Assists the High Representative and works in cooperation with the diplomatic services of the Member States; comprises officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States (Article 27 TEU (Lisbon)).

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Political and Security Committee: Key role in definition and follow-up of EU response to crisis; prepares recommendations on future functioning of CFSP; deals with day-to-day running of these issues, including preparation of CFSP aspects of deliberations of Council (Article 38 TEU(Lisbon)). Special Representatives: Represent and implement CFSP on the ground by carrying out a specific mandate (Article 33 TEU (Lisbon)). European Parliament: To be regularly consulted and informed on the main aspects and basic choices of the CFSP; may ask questions and holds a debate twice a year (Article 36 TEU (Lisbon)).

(4) Legal instruments and decision-making - Instruments: o General guidelines defined by the European Council (Articles 22 and 26 TEU (Lisbon)); decision on actions to be undertaken by the Union (Article 28 TEU (Lisbon)); decisions on positions to be taken by the Union (Article 29 TEU (Lisbon)) -

Decision-making: o Right of policy and legislative initiatives (Article 30 TEU (Lisbon)); unanimous decision-making, subject to qualified majority voting in certain circumstances (Article 31 TEU (Lisbon)).

(5) Policy Implementation and Financing -

Article 24(2) TEU (Lisbon): o Directs Union to conduct, define and implement CFSP based on the development of mutual political solidarity among Member States and the achievement of an ever-increasing degree of convergence of Member States' actions.

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Article 26(2) TEU (Lisbon): o The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.

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Article 26(2) TEU (Lisbon): o CFSP shall be put into effect by the High Representative and by the Member States, using national and Union resources.

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Article 24(2) TEU (Lisbon): o Support Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area; systematic cooperation between Member States (Article 25(c) TEU (Lisbon)) and the duty to inform and consult (Article 32 TEU (Lisbon))

Specific provisions on implementation:

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Duty to coordinate action and represent and defend common positions in international organisations and at international conferences (Article 34 TEU (Lisbon)); duty imposed on embassies, consulates and external representations to cooperate in order to implement policy and to exchange information (Article 35 TEU (Lisbon)).

Financing: - Continued problems concerning procedures and size of budget; political manoeuvring of the European Parliament and 1997 Inter-Institutional Agreement; distinction between administrative expenditure and operational expenditure (Article 41 TEU (Lisbon)).

(6) Judicial Review -

Article 24 TEU (Lisbon): o ECJ does not have jurisdiction with respect to CFSP provisions, with the exception of its jurisdiction to monitor compliance with Article 40 TEU (Lisbon) and to review the legality of decisions imposing restrictive measures on individuals (smart sanctions)

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Article 40 TEU (Lisbon): a) Implementation of the CFSP shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of TFEU; b) Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under the CFSP

Questions - Where can the provisions dealing with the external action of the EU be found? - What common principles govern the external action of the EU? What policy objectives does the CFSP pursue? Why these objectives and not others? - What are the main institutions and bodies involved in the formulation and implementation of the CFSP? - What instruments are available to the EU for the implementation of the CFSP? - In what way does decision-making under the CFSP differ from decision-making in other areas of EU external action? - What is ‘systematic cooperation’ between the Member States in the conduct of policy? - How is the CFSP financed? - What are the possibilities for judicial review of the CFSP? Basic Reading Craig and de Búrca, EU Law (5th edn, 2011), Ch. 10 (‘EU International Relations Law'). W. Wessels and F. Bopp, The Institutional Architecture of CFSP after the Lisbon Treaty (at www.ceps.eu/files/book/1677.pdf). Recommended Reading A. Sari, Decisions on Operational Action and Union Positions: Back to the Future?, in Mangiameli S,Blanke J (eds) The European Union after Lisbon: Constitutional Basis, Economic Order and External Action, Springer, 2011, 533-550’. [http://ssrn.com/abstract=1635807]

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P. Koutrakos, EU International Relations Law (2006), Ch. 11. P. Eeckhout, External Relations Law of the European Union (2004), Ch. 11. F. Naert, ‘ESDP in Practice: Increasingly Varied and Ambitious EU Security and Defence Operations’, in M. Trybus and N. D. White (eds), European Security Law (2007) 61. Further Reading S. Duke and S. Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’, (2006) 11 European Foreign Affairs Review 163. D. Thym, ‘Beyond Parliament's Reach? The Role of the European Parliament in the CFSP’, (2006) 11 European Foreign Affairs Review 109. A. E. Juncos and C. Reynolds, ‘The Political and Security Committee: Governing in the Shadow’, (2007) 12 European Foreign Affairs Review 127. P. Koutrakos, ‘Primary Law and Policy in EU External Relations: Moving Away from the Big Picture’, (2008) 33 European Law Review 666.

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The Common Security And Defence Policy (2)

Topic and purpose of this lecture This lecture considers certain legal aspects of the Common Security and Defence Policy.

(1) From the European Defence Community to St Malo -

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European integration in the field of defence was shaped by beginning of Cold War: the fear of Soviet motives, the need to secure the presence of US forces, the question of German rearmament Brussels Treaty (17 March 1948) creates a mutual defence guarantee between UK, France, Benelux; US agrees to a similar mutual defence guarantee in the North Atlantic Treaty (4 April 1949) Conflict in North Korea in June 1950; US seeks West German rearmament, but France is opposed to the reestablishment of national German armed forces and instead proposes the integration of German forces into a European Army under the control of a single supranational authority European Defence Community Treaty (27 May 1952) signed by six ECSC States; 132 articles and 12 associated protocols; French National Assembly rejects the EDC Treaty in August 1954 German rearmament eventually realised by amending Brussels Treaty of 1948 through the Paris Agreements of October 1954; this leads to the emergence of the Western European Union Question of European defence addressed in the framework of NATO and WEU for the next decades, despite French misgivings (eg France withdraws from NATO’s integrated military command in 1966, triggering the relocation of one of NATO’s supreme headquarters to Belgium) European Political Cooperation did not cover military and defence matters (Article 30 SEA), but only the political and economic aspects of security Maastricht TEU: CFSP extended to military questions (Art.J.4): ‘The common foreign and security policy shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence’; o WEU requested to act as the operational component of the CFSP in order to implement in practice CFSP decisions with military and defence implications Amsterdam TEU: incorporation of the Petersberg Tasks: o ‘humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking’

(Article 17 TEU); establishment of Early Warning and Policy Planning Unit - St. Malo Declaration (1998) by France and UK: EU should make a reality of the Amsterdam provisions and be in a position to play its full role on international stage, therefore the EU must have: (i) the capacity for autonomous action and (ii) appropriate structures to conduct military operations: 1.

2. 3.

The European Union needs to be in a position to play its full role on the international stage. This means making a reality of the Treaty of Amsterdam, which will provide the essential basis for action by the Union. It will be important to achieve full and rapid implementation of the Amsterdam provisions on CFSP. This includes the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP. The Council must be able to take decisions on an intergovernmental basis, covering the whole range of activity set out in Title V of the Treaty of European Union. To this end, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises. […] In order for the European Union to take decisions and approve military action where the Alliance as a whole is not engaged, the Union must be given appropriate structures and a

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capacity for analysis of situations, sources of intelligence, and a capability for relevant strategic planning, without unnecessary duplication, taking account of the existing assets of the WEU and the evolution of its relations with the EU. In this regard, the European Union will also need to have recourse to suitable military means (European capabilities pre-designated within NATO’s European pillar or national or multinational European means outside the NATO framework). -

Cologne European Council (June 1999): Member States commit themselves in the European Council to give the EU the necessary means and capabilities and launch the European Security and Defence Policy

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Purpose of ESDP: to enable the EU to play a greater role on international stage by providing it with the necessary capabilities in two areas: (i) adequate military and civilian capacities for crisis management and conflict prevention and (ii) an appropriate institutional structure to assume this new role

(2) Operational capabilities -

St Malo: the “Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them”; call for the development of capabilities for EU action where NATO as a whole is not engaged Helsinki Headline Goal (1999): 60.000 troops, deploy within 60 days, sustainable for one year Headline Goal 2010: recognition that the EU needs forces which are more flexible, mobile and interoperable; shifts focus on interoperability, deployability, sustainability and rapid reaction--- s Battlegroups concept: battlegroups are small national or multinational force packages (usually about 1.500 troops) that are rapidly deployable and credible from a military perspective, and as such capable of stand-alone operations or for the initial preparatory phase of larger operations Civilian priorities defined at Feira European Council (2001): a) police b) strengthening the rule of law c) strengthening civil administration d) civil protection

(3) Institutional framework -

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A number of bodies operating under the authority of the Council were established (mainly in 2001) specifically for the purposes of the ESDP in order to provide the EU with the institutional structure necessary to undertake crisis management operations Political and Military Committee (PSC) (Article 38 TEU (Lisbon)): linchpin of EU security and defence policy; composed of senior national representatives at ambassadorial level; keeps track of international events, contributes to the formulation of policies by the Council, monitors the implementation of policies and exercises, under the responsibility of Council, political control and strategic direction of crisis management operations EU Military Committee (EUMC): highest military body within the EU; provides the Council with military advice and recommendations on all military matters within EU by advising the PSC; exercises military direction of all military activities within EU, in particular by providing military direction to EUMS Civilian Planning and Conduct Capability (CPCC): civilian equivalent of EUMC; plans and conducts civilian operations under political control and strategic direction of the PSC; CPCC Director, as EU Civilian Operations Commander, exercises command and control at strategic level for the planning and conduct of all civilian crisis management operations

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EU Military Staff (EUMS): provides military expertise and support (e.g. strategic planning) to EU bodies under the direction of EUMC; composed of personnel seconded from the Member States acting in an international capacity (approximately 200) Agencies: Institute for Security Studies, EU Satellite Centre, European Defence Agency

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(4) ESDP operations since 2003 -

EU has launched 24 crisis management missions between 2003 and early 2010 (one more is planned for Somalia): 7 are military, 15 civilian and one was mixed military-civilian in character

Common features: - All missions were established by the Council in form of Joint Action (ex Article 14 TEU (Nice); PSC entrusted with political control and strategic direction of the missions; - Personnel and assets employed were seconded/made available to the EU by its Member States, third States and NATO; deployment of troops and civilian personnel based on the express consent of the host State Differences: - Mission vary greatly in size, ranging from less than a dozen experts to several thousands of military personnel; basic objectives ranged from supervisory, training, advisory and monitoring missions to military operations tasked to contribute to safety and security in their area of deployment; - Radically different operational environments

(5) The legal framework post Lisbon -

ESDP is renamed Common Security and Defence Policy (CSDP) CSDP forms an integral part of CFSP; Articles 24(1) and TEU (Lisbon):

Article 24(1) TEU (Lisbon): The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence. Article 42(1) TEU (Lisbon): The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The fact that CSDP forms an integral part of CFSP means that it operates in same legal environment: a) shares policy objectives of the CFSP (Article21 TEU (Lisbon)); b) is served by the same set of legal instruments (Article 25 TEU (Lisbon)); c) operates within the same institutional framework: European Council, Council, President, High Representative, PSC EU competence in defence:

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Distinguish between security policy, defence policy and a common defence; distinction between defence policy and a common defence somewhat difficult to draw; concept of a common defence unclear following the inclusion of a mutual security/defence guarantee in Article 42(7) TEU (Lisbon) Article 24(1) TEU (Lisbon): The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence. Article 42(2) TEU (Lisbon): The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements. Article 42(7) TEU (Lisbon): If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States. Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation. - Competence in crisis management: previously defined by the non-exhaustive list known as the Petersberg Tasks: ‘humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking’ (Article 17 TEU (Nice)); now expanded: Article 42(1) TEU (Lisbon): ... The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. ... Article 43(1) TEU (Lisbon): The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories. Military capabilities: The Member States undertake progressively to improve their military capabilities for the purposes of the CSDP under Article 42(3) TEU (Lisbon); they are assisted in this process by the European Defence Agency which is tasked to ‘identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities'. Permanent structured cooperation: Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to most demanding missions may establish permanent structured cooperation within the Union framework (Article 42(6) TEU (Lisbon))

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Questions 1. Why were military and defence matters excluded from the scope of European Political Cooperation? 2. How did the Maastricht Treaty incorporate military and defence matters into the CFSP? 3. Why were the operational capabilities of the EU generally considered to be inadequate? 4. What is the significance of the St Malo Declaration? What was the fundamental purpose of the ESDP? 5. What military and civilian commitments have the Member States made within the context of the ESDP? What are battlegroups? 6. What dedicated institutions have been created as a result of the ESDP? 7. What are the main innovations of the Treaty of Lisbon in the area of the CFSP? What is the relationship between the CFSP and the CSDP? 8. What is the difference between security policy, defence policy and a common defence? 9. Has the EU become more effective in the area of the CFSP and CSDP as a result of the Lisbon Treaty?

Basic Reading - P. Koutrakos, The EU Common Security and Defence Policy (2013), Ch. 1 (‘The origins and evolution of CSDP') and Ch. 3 (‘The substantive and institutional framework of Common Security and Defence Policy’) [available at http://www.oxfordscholarship.com through the Exeter Electronic Library]. - S. Blockmans and R. A. Wessel, ‘The European Union and Crisis Management: Will the Lisbon Treaty Make the EU More Effective?’ (2009) Journal of Conflict and Security Law 265. Recommended Reading -

Denza, The Intergovernmental Pillars of the European Union (2006), Ch 11. S. Biscop, ‘Able and Willing? Assessing the EU’s Capacity for Military Action’, (2004) 8 European Foreign Affairs Review 509. M. Trybus, ‘With or Without the EU Constitutional Treaty: Towards a Common Security and Defence Policy’, (2006) 31 European Law Review 145. F. Naert, ‘ESDP in Practice: Increasingly Varied and Ambitious EU Security and Defence Operations’, in M. Trybus and N. D. White (eds), European Security Law (2007) 61.

Further Reading -

Naert, ‘European Security and Defence in the EU Constitutional Treaty’, (2005) 10 Journal of Conflict and Security Law 187. A. Toje, ‘The 2003 European Union Security Strategy: A Critical Appraisal’, (2005) 9 European Foreign Affairs Review 117. D. Scannel, ‘Financing ESDP Military Operations’, (2004) 8 European Foreign Affairs Review 529. Salmon and Shepherd, Toward a European Army: A Military Power in the Making? (2003). Howorth and Keeler, Defending Europe: NATO and the Quest for European Autonomy (2005).

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Free Movement of Capital Intended Learning Outcomes • By the end of this session students should be able to: Understand the role and composition of the ECB; Understand the historical context of European Monetary Union; Evaluate the current problems with European Monetary Union; Evaluate the Treaty on Stability, Coordination And Governance In The Economic and Monetary Union. Composition of the ECB (Executive Board and Governing Council) • Executive Board and a Governing Council. Executive board – President, Vice-President and four other members Recognised experts in monetary/banking matters Serve for 8 years The governing council consists of the executive board plus the governors of national central banks whose currency is the Euro Composition: • President – Mario Draghi • Vice-President - Vítor Manuel Ribeiro Constâncio The ECB • Independence enshrined in Art 130 TFEU The President of the Council and a member of the Commission can attend meetings of the Governing Council but may not vote. Can make Regulations and take Decisions Make recommendations and opinions Can impose financial penalties • The ESCB is made up of the ECB and the national central banks

European Monetary Union Historical Context Werner Report Single community currency Centralization of monetary policy Community system for national central banks Early attempts prevented by market fluctuations and a lack of coordination of national economic policy • Council Resolution to create the European Monetary System Creation of the European currency unit (ECU) Determined by the currency of all Member States And the exchange rate mechanism Set a currency rate for each member state against the ECU All participant countries could not allow their exchange rate to fluctuate by more than 2.25% (with a 6% leeway in times of exception). • The exchange rate mechanism (ERM) was thrown into chaos by the currency crises of 1992-93. The lira and the pound were suspended from the ERM

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The 6% leeway was expanded to 15% Significantly weakened the search for exchange rate stability Economic and Monetary Union: The THREE Stages Stage 1  The preamble of the SEA suggests a commitment to economic and monetary union.  Delors Report (1989) suggests for successful economic intergration: – Completion of the internal market – Closer economic convergence – Membership of all Member States to the ERM Stage 2 • Creation of European System of Central Banks Coordinate national monetary policies Formulate a common monetary policy for the community • Maastricht Treaty 4(1) EC – close coordination of Member States’ economic policies 4(2) EC – irrevocable fixing of exchange rates • Maastricht Treaty Articles 98-104 EC • Some control over the economic policies of Member States Creation of the European Monetary Institute • Forerunner of the ECB • Specify the regulatory, organisational and logistical framework for the ESCB to perform its tasks Stage 3 • The adoption of a single currency For states where the convergence criteria had been met And where central banks were independent All applicants made the standard with the exception of Greece Currency introduced on the 1st January 2002 Why have an Economic Monetary Union? 1. Help economic growth Saves transaction costs – Removes exchange rate conversions – Saves €25 Billion – ‘One market, one money’ – Menu costs – Direct price comparisons – Prevents competitive devaluation 2. Greater price stability – Lower interest rates – Stimulate investment – Stabilise prices – Prevent the overvaluation of exchange rates – ECB not subject to short term political pressures

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A Short Critique of an Economic Monetary Union 1. Contingent Disapproval – Were the member States ready for EMU?  Convergence criteria met by creative accounting?  EMU suited to some states better than others? 2. Outright rejection – Too much power given to the EU?  Devalues national parliament’s role in inflation, interest rates and unemployment.  Democratic deficit? – National currency as symbolic? – Economic problems  Businesses would raise prices  Removed economic adjustment between states (that may be in different financial cycles)

Monetary Policy • Art 127 TFEU Primary objective of ECSB is to maintain price stability Support general economic policies of the EU Define and implement the EU’s monetary policy Conduct foreign-exchange operations Hold and manage the official reserves of the Member States Exclusive right to authorise the issue of banknotes within the Eurozone Co-ordination of Economic Policy 1. Multilateral Surveillance Procedure – Economic policies as a matter of common concern and to coordinate them with the Council – The Council, acting on recommendation from the Commission, formulate economic guidelines for each of the Member States – These guidelines are discussed by the European Council who set broader guidelines – The Commission then report to the Council on how well Member States are working towards these guidelines. o Commission may warn Member States not consistent with the guidelines. o Council may make recommendations in this area 2. Excessive Deficit Procedure – Member States are under an obligation to avoid excessive deficits – The Commission identifies ‘gross errors’. – The Council identifies whether an excessive deficit exists. o Can make recommendations to Member State o These can be made public o Can issue fines o Can invite the European investment bank to reconsider its lending policy Effectiveness of Economic Policy Co-ordination

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2002-2003 • France, Germany, Portugal and Italy are found to have huge deficits • They pledge to balance their budget in the medium terms • Departed from their corrective programmes • The Commission had to take legal action • France and Germany’s flouting of the Stability and Growth Pact led to a soft, discretionary approach to multilateral surveillance procedures and excessive deficit procedures. 2008-2011 • Banking and financial crisis Greece’s rating to repay its debt was downgraded Questions raised about the Euro Support package for Greece • New measures passed under Art 136 TFEU Prudent fiscal policy-making More specific measures as to the rate of debt reduction Effective enforcement measures Reliability of data Sanctions if conditions are not met Commission’s Recovery Plans • http://www.bbc.co.uk/news/world-europe-15849913 Currently being monitored by the EU Finland Bulgaria Ireland UK Portugal Malta Romania Greece New Treaty? • Vetoed by the UK • Inter-governmental treaty Will this new treaty be enforced by EU institutions? Is the UK excluded from a treaty that includes the 26 other Member States? How will this effect decisions on the free market? Treaty on Stability, Coordination And Governance In The Economic and Monetary Union UK Response to the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union • http://www.bbc.co.uk/news/uk-politics-16815841 • http://www.bbc.co.uk/news/business-16301630 • http://www.bbc.co.uk/news/uk-politics-16821162 – ed Milliband mocks the PM • http://www.bbc.co.uk/news/uk-politics-16815841 – PM response • http://www.bbc.co.uk/news/world-europe-16803157 – Angela Merkel • the European Court of Justice to monitor compliance and impose fines on rule-breakers.

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1. 2.

“…to strengthen the coordination of economic policies and to improve the governance of the euro area, thereby supporting the achievement of the European Union's objectives for sustainable growth, employment, competitiveness and social cohesion.” “The provisions of this Treaty shall apply insofar as they are compatible with the Treaties on which the Union is founded and with European Union law. They shall not encroach upon the competences of the Union to act in the area of the economic union”.

Article 3 • Member State credit must be balanced or in surplus • Country specific objectives The Role of the Commission Art. 5 “Their submission to the European Commission and the Council for endorsement and their monitoring will take place within the context of the existing surveillance procedures of the Stability and Growth Pact”. Art. 6 “With a view to better coordinating the planning of their national debt issuance, the Contracting Parties shall report ex-ante on their public debt issuance plans to the European Commission and to the Council”.

The Role of the ECJ • Art 8) Proceedings can be brought by the Commission or a “Contracting Party” (A Member State) to the ECJ. Article 16 “Within five years at most following the entry into force of this Treaty, on the basis of an assessment of the experience with its implementation, the necessary steps shall be taken, in compliance with the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union, with the aim of incorporating the substance of this Treaty into the legal framework of the European Union.”

Conclusions • Disquiet in the ranks? • Germany to persuade it’s own citizens?

Revision Lecture (2)

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Intended Learning Outcomes • By the end of this session you should: Feel so confident that you can’t even believe it • Closed Note Exam • You are NOT permitted to take in any materials. This includes: Statute books 2 sides of A4 Paper Round 1: Direct Effect • What is Direct Effect? • ‘Clear, precise and unconditional’ came from which case? • What does the ‘vertical’ part of vertical direct effect mean? • A wide definition of the state is used to determine direct effect. What is the case for this? Free Movement of Goods: Problem Question • Abendsaft is a new alcoholic drink manufacturer from Extopia (a fictional Member State). In exporting their product they have come across the following difficulties. Consider each of the following situations: a) Spain charges a levy of €1 for every litre of alcohol imported into Spain. Spain uses the revenue to provide support services for people with addiction and substance related issues. b) The UK taxes lager at a much higher rate than ales. The UK is responsible for the production of these ales and very few UK companies make lagers. The UK argues that this policy promotes public health. c) Portugal, concerned about alcoholic drinks being confused with non-alcoholic, requires that alcoholic drinks are packaged in red containers and non-alcoholic are packaged in green containers. Assuming there is no harmonising EU legislation relating to alcohol, advise Abendsaft as to any relevant issues arising under EU law. • a) Spain charges a levy of €1 for every litre of alcohol imported into Spain. Spain uses the revenue to provide support services for people with addiction and substance related issues. What is this? A customs duty, a tax, a quantitative restriction or a MEQR? What article does this come under? What are the derogations? It’s a CUSTOMS DUTY! • Spain’s levy constitutes a customs duty (CD). CDs refer to ‘charges imposed on imported goods when they cross a frontier’. • Are CDs legal under EU law? No. Art. 30 TFEU prohibits CDs on imports and exports between MS. • Does it matter that Spain uses the revenue of the CD to support people with alcohol related illnesses? No, as the prohibition of CDs is absolute. There are no derogations and the ECJ has made clear that the purpose of the charge is completely irrelevant (Sociaal Fonds). It does not matter that the money raised is used for a worthy or legitimate cause. So long as the charge interferes with free trade, it is prohibited. The UK taxes lager at a much higher rate than ales. The UK is responsible for the production of these ales and very few UK companies make lagers. The UK argues that this policy promotes public health. What is this? A customs duty, a tax, a quantitative restriction or a MEQR? What article does this come under? What are the derogations? It’s a TAX!

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Art. 110 TFEU prohibits discriminatory taxation. Two questions must be answered to find out whether a tax is discriminatory: (i) does the tax apply to ‘similar products’? and (ii) does it place a heavier burden on imported products? Similarity - (i) physical characteristics (what is the product made of? what does it look like? what does it taste like?) and (ii) consumer preference (do consumers consider product B as a possible alternative to product A? are products A and B in competition?). Indirect discrimination- Humblot NO DEROGATIONS! (Can be objectively justified – Chemial Farmaceutici). •

Portugal, concerned about alcoholic drinks being confused with non-alcoholic, requires that alcoholic drinks are packaged in red containers and non-alcoholic are packaged in green containers. What is this? A customs duty, a tax, a quantitative restriction or a MEQR? What article does this come under? What are the derogations? It’s an MEQR! • Dassonville - ‘all trading rules … which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’. Does not matter that it is indistinctly applicable all barriers to trade, whether discriminatory or not, must be removed. Dual Burden Mutual Recognition Two sets of exceptions to Art. 34 TFEU: (i) treaty exceptions (laid down in Art. 36 TFEU) and (ii) case-law exceptions (doctrine of ‘mandatory requirements’ laid down by the ECJ in Cassis). Must not be arbitrary or disproportionate Free Movement of Workers: Problem Question Hans, an Austrian national, has just moved to Italy with his German wife and elderly parents to seek work. He wishes to know how far he and his family can benefit from EU rights relating to free movement. Michelle, a French national has just been made redundant from her teaching post in a Belgian school. She goes to the job centre to seek work but is told that she cannot be given assistance in seeking employment unless she shows her residence permit. Moreover, the job centre has contacted the immigration authorities and Michelle has been given one month to leave the country. Would your answer to the (b) scenario differ if Michelle had given up her teaching post voluntarily? Critically discuss (a) (b) and (c) making reference to relevant EU case law. • Hans, an Austrian national, has just moved to Italy with his German wife and elderly parents to seek work. He wishes to know how far he and his family can benefit from EU rights relating to free movement. • Definition of a worker • Three criteria (Lawrie-Blum): 1) Genuine economic activity for a certain period of time. – Activity must be part of the “normal labour market”(Trojani) – Irrelevant whether the work is part time or paid with minimum wage (Levin) 2) Work under the supervision of another person – Self employment is covered by Article 49 TFEU (establishment) 3) Remuneration: broad interpretation to include payment in kind (Steymann). How far can those seeking work benefit from Article 45? i. Royer [1976] ECR 497 (right to look for or pursue an occupation) ii.

Antonissen [1991] ECR I-745 (those actively seeking work do not have the full status of a worker, but are nonetheless covered by Article 45)

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1. 2. 3. 4. 5. iii.

Example of court’s purposive approach, suggesting a wider scope of Article 45 (literal interpretation would hinder that purpose!) ECJ: ‘rights in Article 45 are not exhaustive! However, ECJ was clear that status of those seeking work is not the same as that of employed EU national Member States retain the power to expel a job seeker who does not have prospects of finding work within reasonable time If discussion of social provisions such as unemployment insurance, reference might be made to Commission v Belgium [1996], Lebon [1987], Collins [2002], Ioannidis [2005]

Reference should be made to directive 2004/38: right of entry and residence of workers and their families- gives initial right of entry and residence for up to three months without any condition other than presentation of ID card or passport. Interim status of job-seeker is also recognised in the preamble which confirms ECJ case law.

Michelle, a French national has just been made redundant from her teaching post in a Belgian school. She goes to the job centre to seek work but is told that she cannot be given assistance in seeking employment unless she shows her residence permit. Moreover, the job centre has contacted the immigration authorities and Michelle has been given one month to leave the country. Michelle, French national made redundant from her Belgian School • See directive 2004/38- Michelle retains the status of worker, see article 7(3) Article 5 of regulation 1612/68 (now 492/2011)- substantive rights and social advantages: article 5 guarantees the same assistance from employment offices to non-nationals as well as to nationals. Michelle cannot be refused job centre assistance. • Would your answer to the (b) scenario differ if Michelle had given up her teaching post voluntarily? Michelle has given up her teaching post voluntarily i. The directive (2004/38: right of entry and residence of workers and their families) does not deal with voluntary unemployment, so the assumption may be made that a person will not retain the status of worker if they become voluntarily unemployed (unless they pursue vocational training). ii. However, again Antonissen and Collins: a person seeking work enjoys certain rights under Article 45 (right of residence and certain benefits (see also Ioannidis) iii. Rules which directly discriminate on the grounds of nationality will be caught by article 45 iv. Indirect discrimination, even impediments to marked access can lead to an infringement of article 45. Indirect discrimination can be given where benefits are made conditional, in law or in fact, on residence/ place of origins requirements v. Possible justifications for indirect discrimination are broad, but would certainly not apply in this case vi. citizens who are unemployed and looking for a job have the right to live in another EU country for up to three months, although it is possible to extend the transfer period to a maximum of six months. Review of Legality • A decision addressed to Aria has been made by the commission in order to control the amount of Pokémon Cards imported into the EU. Ryan is the only other importer of Pokémon Cards in the EU. He uses article 263 to challenge the legality of the act. As he is the only other importer he claims to be individually concerned. Advise Ryan. • Is this an Act? • Direct concern Does it directly affect Ryan? Does the measure leave discretion as to the addressees of the measure? • Individual concern Differentiated from all other persons? (Plaumann)

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Could anyone import Pokémon cards at any time? Criticisms of the Plaumann test State Liability The Supreme Court in the UK has disregarded a ruling by the ECJ on a badly implemented directive. The Commission admit that the wording of the Directive was ambiguous. Priya’s company has suffered loss as a result of the UK’s understanding of the directive. The UK Government has restricted state liability claims to criminal offences only. Advise Priya • State Liability Francovich Test 1. The directive involved rights conferred on individuals; 2. The content of those rights could be identified on the basis of the provisions of the directive; and 3. There was a causal link between the states failure and the damage suffered by the persons affected. Brasserie du Pêcheur 1. The rule of law infringed must be intended to confer rights on individuals 2. The breach must be sufficiently serious 3. There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. Köbler BT Lehtinen

Free Movement of Goods: Case Note • Write a case note on Keck. (Case note guide: Scholarly report of a decision, which includes a concise analysis of the opinion, with citations to related cases. You should identify the main themes and issues and tell us why this case is important) • Structure • In what context has this treaty arisen? (i.e. which part of the treaty does it relate to?) • Previous case law on the subject (if any) • Outline of the case • Impact of the case (on subsequent case law) • Conclusion • In what context has this treaty arisen? (i.e. which part of the treaty does it relate to?) This relates to the area of free movement of goods and arose specifically in the context of Art 34. • Previous case law on the subject (if any) Dassonville defined MEQR’s Very broad Cassis Limits some of this broadness using new derogations Sunday Trading Cases (B &Q) Possibly decided differently in light of Keck • Outline of the case Keck – Selling Arrangements Delimited some of the broadness of Dassonville, Fell outside the derogations in Cassis Solved the Sunday Trading Cases Issue • Impact of the case (on subsequent case law) No effect on the Treaty (alongside Cassis) Subsequent case law – Gourmet International Products, Mickelson and Roos… • Conclusion

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