Advanced Materals Flashcards
Article 26 TFEU
Establishes free movement within the internal market, and the four fundamental freedoms
Establishes free movement within the internal market, and the four fundamental freedoms
Article 26 TFEU
What is direct effect?
An EU law has direct effect if it can be asserted by a legal person in a national court.
What is supremacy?
EU law takes effect over any conflicting national law. Also called primacy.
What happens when a national law conflicts with an EU law?
The EU law takes precedence if the rule is clear, precise, and unconditional. The conflicting national law is disapplied.
Which case establishes the principle of direct effect?
Van Gend en Loos v Netherlands
Van Gend en Loos v Netherlands
Facts: Dutch chemical importer challenging an increase of customs duty in domestic legislation in Dutch court, arguing that it breaks EU Treaties. Dutch court makes a reference for preliminary ruling, asking what happens where EU Treaties conflict with national law. CJEU responded to say national courts must apply EU law and disapply the conflicting national law.
Significance: Authority for direct effect/supremacy of EU law.
Facts: Dutch chemical importer challenging an increase of customs duty in domestic legislation in Dutch court, arguing that it breaks EU Treaties. Dutch court makes a reference for preliminary ruling, asking what happens where EU Treaties conflict with national law. CJEU responded to say national courts must apply EU law and disapply the conflicting national law.
Significance: Authority for direct effect/supremacy of EU law.
Van Gend en Loos v Netherlands
Does supremacy apply to national laws passed recently (i.e. more recent law rules)?
Yes - supremacy applies regardless of dates of relevant legislation.
Authority: Simmenthal
Simmenthal
Facts: Company imports French beef into Italy. Italian national law imposes a border check, and was passed after Italy joined the EEC. Issue was whether the lower court judge could disapply national law. Make a reference to CJEU for preliminary ruling, CJEU said that EU law applies instantly throughout all national courts.
Significance: Supremacy applies throughout all national courts, regardless of date legislation passed.
Facts: Company imports French beef into Italy. Italian national law imposes a border check, and was passed after Italy joined the EEC. Issue was whether the lower court judge could disapply national law. Make a reference to CJEU for preliminary ruling, CJEU said that EU law applies instantly throughout all national courts.
Significance: Supremacy applies throughout all national courts, regardless of date legislation passed.
Simmenthal
What is vertical direct effect?
A legal person challenges a Member State based on EU law
What is horizontal direct effect?
A legal person challenges another legal person (not a state) based on EU law
Do treaty articles have direct effect?
Yes. Examples: Simmenthal, Van Gend en Loos
Do treaty articles have both vertical and horizontal direct effect?
Yes.
Vertical: e.g. Van Gend en Loos
Horizontal: Defrenne v Sabena No 2
Antonio Munoz
Facts: Antonio Munoz sold grapes. Competitor was selling grapes with non-compliant labels. The relevant regulation didn’t specifically confer rights onto individuals to challenge other individuals. Did it have horizontal direct effect? CJEU said yes.
Significance: Example of EU regulation having horizontal direct effect.
Facts: Antonio Munoz sold grapes. Competitor was selling grapes with non-compliant labels. The relevant regulation didn’t specifically confer rights onto individuals to challenge other individuals. Did it have horizontal direct effect? CJEU said yes.
Significance: Example of EU regulation having horizontal direct effect.
Antonio Munoz
Does the EU Charter of Human Rights have direct effect?
Yes, both horizontal and vertical.
Do EU Directives have direct effect?
Not usually - because they require implementing measures by the Member State, then the challenge should be based on the implementing legislation, not the EU Directive.
When can EU Directives have direct effect?
When the MS didn’t properly implement them - e.g. Van Duyn and Becker. But vertical only!
Do Directives have horizontal direct effect?
No, only vertical. But a public body can be held to a Directive even when they are acting in a private capacity, e.g. as an employer. Authority: Marshall v Southampton Health Authority
Marshall v Southampton Health Authority
Facts: Marshall bringing the health authority to court over their retirement policy breaching an EU Directive. The UK law did not address retirement. CJEU ruled that the EU Directive was breached, and could be relied upon by Marshall since the health authority is a public body. It was still vertical direct effect even though the health authority was acting as an employer. However, CJEU re-iterated that Directives do not have horizontal direct effect.
Significance: Directives have direct vertical effect. It is still vertical direct effect when a public body is acting in a private capacity.
Facts: Marshall bringing the health authority to court over their retirement policy breaching an EU Directive. The UK law did not address retirement. CJEU ruled that the EU Directive was breached, and could be relied upon by Marshall since the health authority is a public body. It was still vertical direct effect even though the health authority was acting as an employer. However, CJEU re-iterated that Directives do not have horizontal direct effect.
Significance: Directives have direct vertical effect. It is still vertical direct effect when a public body is acting in a private capacity.
Marshall v Southampton Health Authority
What is indirect effect?
National courts must interpret their national law in a way which is compliant with the wording, purpose, and objective of the EU Directive. Also called the duty of consistent interpretation.
What is the duty of consistent interpretation?
National courts must interpret their national law in a way which is compliant with the wording, purpose, and objective of the EU Directive. Also called indirect effect.
What is generally the result of indirect effect?
Generally results in amendment of the national law to more clearly comply with EU Directive. Is not an avenue to damages for a claimant.
What is state liability in EU law?
Allows individuals to seek remedies for losses suffered as a result of Member State’s failure to implement or apply EU law. The legal person is able to sue the Member State in national court.
What are the requirements for state liability?
1) The EU law is intended to confer rights upon individuals
2) Breach of EU law must be sufficiently serious
3) Must be a direct causal link between State’s failure and the damages suffered
Authority: Brasserie de Pecheur case (modifying Francovich).
Brasserie de Pecheur
Facts: A German brewery (Brasserie du Pêcheur) faced financial losses due to conflicting national and EU beer quality regulations. CJEU established that Germany could be held liable for the losses caused by their breach of EU law, thereby establishing State liability.
Significance: Established State liability and criteria (sufficiently serious breach, causal link, and EU law must confer right to individuals).
Facts: A German brewery (Brasserie du Pêcheur) faced financial losses due to conflicting national and EU beer quality regulations. CJEU established that Germany could be held liable for the losses caused by their breach of EU law, thereby establishing State liability.
Significance: Established State liability and criteria (sufficiently serious breach, causal link, and EU law must confer right to individuals).
Brasserie de Pecheur
What is the definition of a good?
Officially: products which can be valued in money and which are capable of forming the subject of commercial transactions” - Commission v Italy
Unofficially: Must be detectable with the senses
Art 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States
What is a quantitative restriction?
A numerical limit (including an outright ban) which affects the import of a product.
What is a measure having equivalent effect?
Any measure enacted by a MS capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.
Authority: Dassonville
Dassonville
Facts: French company imports whisky from the UK, re-labels it, and exports it to Belgium. Belgian law requires a certificate of origin, the whisky didn’t have one, so were prosecuted under Belgian law. CJEU ruled it was a measure with equivalent effect.
Significance: Defines measures with equivalent effect.
Facts: French company imports whisky from the UK, re-labels it, and exports it to Belgium. Belgian law requires a certificate of origin, the whisky didn’t have one, so were prosecuted under Belgian law. CJEU ruled it was a measure with equivalent effect.
Significance: Defines measures with equivalent effect.
Dassonville
What are the criteria for an Art 34 breach?
1) The measure must be attributable to a MS
2) Must be capable of hindering trade, i.e. anything impacting the volume of trade
3) There must be an intra-EU element
Keck
Facts: Keck was reselling goods at a loss, contrary to French law. Invoked Art 34 as a defence, to say that the French law was an impediment to free movement. Ruled as falling outside the scope of Art 34.
Significance: Established the “Keck Test/Keck Exemption” for selling arrangements. If the national rule is 1) a selling arrangement, 2) affecting all traders regardless of MS, and 3) is applied equally in law and in fact, then the national rule falls outside the scope of Art 34.
Facts: Keck was reselling goods at a loss, contrary to French law. Invoked Art 34 as a defence, to say that the French law was an impediment to free movement. Ruled as falling outside the scope of Art 34.
Significance: Established the “Keck Test/Keck Exemption” for selling arrangements. If the national rule is 1) a selling arrangement, 2) affecting all traders regardless of MS, and 3) is applied equally in law and in fact, then the national rule falls outside the scope of Art 34.
Keck
What is a selling arrangement?
Something which affects the arrangements under which products may be sold, including marketing
De Agostini
Facts: Italian company launches a new kids magazine and advertises EU-wide on TV. Breaks Swedish law as can’t advertise anything targeted at children. Italian company argues the ban breaches Art 34. Swedish government argues that it applies equally in law and in fact. CJEU concluded that banning TV advertising made it more difficult for non-Swedish products to break into the market, so was discriminatory in fact. As such, could not rely on Keck exemption.
Significance: Illustration of an MEE/selling arrangement applying equally in law but not in fact.
Facts: Italian company launches a new kids magazine and advertises EU-wide on TV. Breaks Swedish law as can’t advertise anything targeted at children. Italian company argues the ban breaches Art 34. Swedish government argues that it applies equally in law and in fact. CJEU concluded that banning TV advertising made it more difficult for non-Swedish products to break into the market, so was discriminatory in fact. As such, could not rely on Keck exemption.
Significance: Illustration of an MEE/selling arrangement applying equally in law but not in fact.
De Agostini
Commission v Italy (Mopeds)
Facts: Italian ban on using tailers with mopeds/motorbikes. Commission said it was a MEE, but Italy argued it wasn’t a ban on selling, just on use. CJEU ruled that use restrictions affect consumer purchasing behaviour (why would you buy something you couldn’t use?) so it was an MEE and required justification.
Significance: Example of use restrictions and establishment of the market access test
Facts: Italian ban on using tailers with mopeds/motorbikes. Commission said it was a MEE, but Italy argued it wasn’t a ban on selling, just on use. CJEU ruled that use restrictions affect consumer purchasing behaviour (why would you buy something you couldn’t use?) so it was an MEE and required justification.
Significance: Example of use restrictions and establishment of the market access test
Commission v Italy (Mopeds)
What is the market access test?
Does the national rule have the effect of hindering access to that MS’ market? Applies to use restrictions.
Authority: Commission v Italy (Mopeds)
How can a MS justify a breach of Art 34?
By using either Article 36 justifications (exhaustive list) or the Cassis de Dijon “mandatory requirements”/case law
What are the justifications allowed by Art 36?
Public morality, public policy, public security.
Protection of health/life of humans, animals, plants.
Protection of national treasures.
Protection of industrial/commercial property.
What is the proportionality test?
National measures must be 1) suitable to achieve their objective and 2) not go beyond what is necessary to achieve the objective.
Article 56 TFEU
Freedom to provide services
Which article establishes the freedom to provide services?
Art 56 TFEU
What is a service?
Art 57: Anything provided for renumeration that isn’t a good, capital, or person, including industrial, commercial, craft, or professional work.
In practice: A service is temporary by nature
Where are the statutory justifications for Art 56 exceptions found?
Art 62 TFEU
Art 62 TFEU
Justifications for exceptions for freedom to provide services
What are the Art 62 justifications for restrictions on services?
Public policy
Public security
Public health
Exercise of official authority
Information Society Directive 2000/31 and 2015/1535
Governs e-commerce service providers (“Information Society Services”) the right not to be restricted from providing e-commerce services from another MS
What is an ISS/e-commerce?
Information Society Service:
Service provided for renumeration
At a distance
By electronic means
Governs e-commerce service providers the right not to be restricted
Information Society Directive 2000/31 and 2015/1535
Any restrictions on the freedom to provide services must be __________
Notified to the European Commission (authority: Art 15.7)
Luisi & Carbone
Facts: Two Italian nationals residing in Italy bought more foreign currency than allowed by Italian law and were issued fines. They challenged the fines as they had purchased the currency for tourism in other MS and one had also travelled to Germany for a medical procedure in that time, so the Italian law impeded free movement of capital and free movement of services. Italian court made a preliminary ruling reference. Italian law was deemed non-compliant - they could impose controls to verify that cash was used for authorized movements of capital, but could not set a limit on amount for authorized movements.
Significance: Free movement of services implies the right to carry necessary funds to pay for such services. Example of freedom of capital and freedom of services overlapping.
Facts: Two Italian nationals residing in Italy bought more foreign currency than allowed by Italian law and were issued fines. They challenged the fines as they had purchased the currency for tourism in other MS and one had also travelled to Germany for a medical procedure in that time, so the Italian law impeded free movement of capital and free movement of services. Italian court made a preliminary ruling reference. Italian law was deemed non-compliant - they could impose controls to verify that cash was used for authorized movements of capital, but could not set a limit on amount for authorized movements.
Significance: Free movement of services implies the right to carry necessary funds to pay for such services. Example of freedom of capital and freedom of services overlapping.
Luisi & Carbone
Visser
Facts: Request from NL Supreme Court for preliminary ruling. Challenge to a zoning plan designating certain zones as being exclusively reserved for retail trade in bulky goods, as an owner of one of the premises wanted to lease to shoe/clothing shops. Note that there was not a strong inter-MS element here - customers may come from other MS, and the court focussed on harmonization as an objective. Court ruled that EU law was engaged, and retail of goods is a service, but the reasoning for the zoning plan (maintain viability of city centre) could be a justification for ORPI if all justification criteria are satisfied.
Significance: Retail sale of goods is a service, so restricting opening hours affects both freedom to provide goods and freedom to provide services.
Facts: Request from NL Supreme Court for preliminary ruling. Challenge to a zoning plan designating certain zones as being exclusively reserved for retail trade in bulky goods, as an owner of one of the premises wanted to lease to shoe/clothing shops. Note that there was not a strong inter-MS element here - customers may come from other MS, and the court focussed on harmonization as an objective. Court ruled that EU law was engaged, and retail of goods is a service, but the reasoning for the zoning plan (maintain viability of city centre) could be a justification for ORPI if all justification criteria are satisfied.
Significance: Retail sale of goods is a service, so restricting opening hours affects both freedom to provide goods and freedom to provide services.
Visser
How is a cross-border element engaged re: freedom to provide services?
Even if no person moves, if the service crosses a border, then there is a cross-border element.
Additionally, if either the service provider or recipient crosses a border, then there is a cross-border element.
