EU Flashcards
(51 cards)
Biocides case
When the EU legislature confers, in a legislative act, a delegated power on the Commission pursuant to Article 290(1) TFEU, the Commission is called on to adopt rules which supplement or amend certain non-essential elements of that act. In accordance with the second subparagraph of Article 290(1) TFEU, the objectives, content, scope and duration of the delegation of power must be explicitly defined in the legislative act granting such a delegation. That requirement implies that the purpose of granting a delegated power is to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act.
By contrast, when the EU legislature confers an implementing power on the Commission on the basis of Article 291(2) TFEU, the Commission is called on to provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States.
This still gives the EU legislature some discretion as to the choice of act and as the review by the EU courts is limited to whether the legislature made a manifest error of assessment in practice, this means that it may be difficult for the European Commission to seek to insist on the Article 290 TFEU procedure which gives it the greater autonomy in the adoption of non-legislative measures.
Titanium Dioxides case
The choice of legal basis for EU actions must be made on the basis of ‘objective factors’ linking the aim and content of a legal act to the legal basis in the Treaty, which are amenable to judicial review
Working Time case
The Council adopted Directive 93/104 based on Art.ll8a of the EC Treaty (harmonisation of health and safety in the working environment), providing, inter alia, that average weekly working time should not exceed 48 hours, that there should be specified minimum rest periods and that workers should be entitled to four weeks’ annual paid leave. The United Kingdom challenged the measure under Art.230 (ex 173), claiming that it should have been adopted under Art.100 (now Art.94), requiring a unanimous vote, rather than Art. 118a (now, after amendment, Art.138), requiring a qualified majority vote, and that it contravened the principle of subsidiarity.
ECJ held:
1. Article 118a of the Treaty is the appropriate legal basis for the adoption by the Community of measures whose principal aim is the protection of the health and safety of workers, notwithstanding the ancillary effects on the internal market. Since its aim is to ensure that protection, Article 118a constitutes a more specific rule than Articles 100 and 100a. It is for that reason that, in terms of both its aim and its content, Directive 93/104 concerning certain aspects of the organization of working time could, (save for the provisions giving priority to Sunday as the weekly rest day which must therefore be annulled) be adopted on the basis of Article 118a.
- As part of the system of Community competence, the choice of the 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.
A mere Council practice cannot derogate from the rules laid down in the Treaty, and cannot therefore create a precedent binding on the Community institutions where, prior to the adoption of a measure, they have to determine the correct legal basis for it. - Article 235 of the Treaty may be used as the legal basis for a measure only where no other Treaty provision confers on the Community institutions the necessary power to adopt it.
- The adoption by the Council of Directive 93/104 concerning certain aspects of the organization of working time did not constitute an infringement of the principle of proportionality.
The limited power of review which the Community judicature has over the Council’ s exercise of its wide discretion in the area of the protection of workers’ health and safety, has not revealed either that the measures forming the subject-matter of the directive, save for that contained in the second paragraph of Article 5, were unsuited to achieving the aim pursued, namely workers’ health and safety, or that those measures, which have a degree of flexibility, went beyond what was necessary to attain their objective. - An act of a Community institution is vitiated by a misuse of powers if it has been adopted with the exclusive or main purpose of achieving ends other than those stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.
That is not the case with Council Directive 93/104 concerning certain aspects of the organization of working time, since it has not been established that it was adopted with the exclusive or main purpose of achieving an end other than the protection of the health and safety of workers envisaged by Article 118a of the Treaty which constitutes its legal basis. - Whilst the statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain the reasons for it and to enable the Court to exercise judicial review, the authority is not required to go into every relevant point of fact and law.
Where a contested measure clearly discloses the essential objective pursued by the institution, it would be pointless to require a specific statement of reasons for each of the technical choices made by it.
Germany v EP and Council (Tobacco Advertising)
Perhaps the most infamous example of a claim not only that a legislative act had the wrong legal basis but in reality that the EU lacked competence to harmonise national laws is Germany’s successful challenge to the legality of the Tobacco Advertising Directive. The EP and Council had adopted the Directive on the basis of what is now Article 114 TFEU – the internal market legal basis. (For Art 114, QMV applies. Must be used only when it can genuinely improve the operation of internal market: e.g. by removing obstacles to trade, or by removing distortions to competition.) The Court made clear that the aim of this provision was to improve the functioning of the internal market by removing obstacles to free movement and distortions to competition (market integration) and not a means to regulate the market in the pursuit of a public health goal:
83 … the measures referred to in Article [114] of the Treaty are intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it vests in the Community legislature a general power to regulate the internal market would not only be contrary to the express wording of the provisions cited above but would also be incompatible with the principle embodied in [in the Treaty] that the powers of the Community are limited to those specifically conferred on it.
Although this case was noteworthy because it was the first occasion in which the Court of Justice annulled a legislative act, a revised version of the Directive was adopted and a subsequent legal challenge brought by Germany was unsuccessful, leading Professor Steve Weatherill to suggest that judicial review of the legal basis of measures was becoming a ‘drafting guide’ for the EU legislator
Netherlands v Council and EP (Patenting of Genes)
A good example of the use of the subsidiarity principle in judicial review proceedings concerns the use of the EU’s powers to harmonize under Article 114 TFEU. An obvious solution to the problems created by many national barriers to trade would be for the EU legislator to adopt harmonized rules. Yet this can give rise to objections from Member States who wish to regulate matters domestically. These challenges typically do not succeed precisely because the aim of the EU harmonization is to overcome the barriers to trade caused by unilateral action by Member States.
‘The objective pursued by the Directive, to ensure smooth operation of the internal market by preventing or eliminating differences between the legislation and practice of the various Member States in the area of the protection of biotechnological inventions, could not be achieved by action taken by the Member States alone. As the scope of that protection has immediate effects on trade, and, accordingly, on intra- Community trade, it is clear that, given the scale and effects of the proposed action, the objective in question could be better achieved by the Community.’
R v. MAFF ex parte Fedesa
As regards the application of the proportionality principle, the Court of Justice is quite explicit that its review function is limited to determining whether there has been a manifest error of assessment by the EU legislator.
“The Court has consistently held that the principle of proportionality is one of the general principles of Community law . By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when 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 .
However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty . Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue”
Vodafone [2010]
Regulation on roaming fixes maximum charges, the Eurotariffs, which may be invoiced by mobile telephony operators for voice calls received or made by a user travelling abroad.
It is the original version of the Regulation which was challenged by several mobile telephone operators before the High Court of Justice of England and Wales. The latter asked the Court of Justice whether the Community legislature had the power to adopt the Regulation on the basis of Article 95 of the TEC (now Article 114 of the TFEU) and whether, by fixing maximum retail charges, it has infringed the principles of subsidiarity and/or proportionality.
In this judgment, the Court confirms the validity of the Regulation. It points out firstly that the Community legislature was in a situation in which, given the high level of prices for roaming services charged by operators and the growing concerns expressed on this matter by public authorities and consumer associations, the adoption of national measures to lower retail prices seemed likely. The heterogeneity of such legislation and the absence of effective instruments in the hands of the national regulators to influence wholesale prices too were liable to cause significant distortions of competition and to disrupt the orderly functioning of the roaming markets. Under these conditions, the Court considers that the Regulation, by establishing a common, coherent framework at Union level, did genuinely have the object of improving the conditions for the functioning of the internal market and that it could be adopted on the basis of Article 95 of the TEC.
Van Gend en Loos
Whether provision of treaty could be enforced in Dutch courts to prevent application of customs duty. Dutch gov argued that courts has no jurisdiction to rule in the matter b/c interpretation of effects of EU law in national courts was matter for Dutch courts to decide; rejected by ECJ
Held: 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.
Also introduced test of justiciability ( v restrictive) as a precondition for direct effect:
“… 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 very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between member states and their subjects”
In other words, in order to be directly effective a provision had to be ‘clear and unconditional’ and a ‘prohibition’ rather than a positive duty. In subsequent cases, Ct relaxed the threshold of justiciability
Costa v. ENEL
Binding sources of EU law takes priority over inconsistent national provisions in event of conflict. National courts must set aside national law to the extent it conflicts – what does this mean? DOESN’T MEAN that national laws are invalid; ECJ has no power to strike down national law. What it means: that national courts are obliged to dis-apply national law to the extent that it conflicts w/ EU law.
Simmenthal
The Court made clear that EU law prevailed not only over legal measures of the Member States that had been adopted prior to 1957 but indeed to all legal acts of the Member States including future legal acts. In this way, the rule that the later law applies is modified to ensure the ongoing primacy of EU law
Ct also addressed potential jurisdiction problem. Simmenthal was referred from Italian courts; concerned payment of charges & fees when livestock moved across border. Issue was whether national court had jurisdiction to dis-apply rules
Problem: claimant has to wait for case to be reviewed
Ct held: duty to disapply inconsistent provisions of national law is applicable to ALL national courts
Internationale Handelsgesellschaft mbH
P argued that giving primacy to EU law conflicts w/ protection of fundamental rights guaranteed by German constitution. BUT EU measures would collapse if measured by national standards. Thus, case decided that national courts cannot have recourse to provisions of national law to determine validity of EU measures
“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…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.”
Solange jurisprudence
Essentially so long as the EU protected fundamental rights – and later, so long as the EU acted within the limits of its competence (Brunner) and acted in ways that did not reduce the statehood of Germany or its constitutional identity – German courts would enforce and give primacy to EU law.
Factortame
It has been relatively easy, given the flexibility of the UK constitution, to accept primacy and direct effect.
R. v. Secretary of State for Transport ex parte Factortame (no. 2) [1991] 1 AC 603
If the supremacy … of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the 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 1972 Act 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.
Reyners v. Belgium
If the rights contained in a measure are conditional on some other measures being adopted – whether further legislative action at EU level or some implementing act by the Member State – it will not be directly effective.
However, the Court has again tried to give effect to provisions even where they imply that further legislative action or implementation may be required. It has instead sought to give effect to the core underlying obligation
Dutch law student sought admittance to Belgian bar, not admitted b/c he was Dutch. Argued that this breached principle of non-discrimination on grounds of nationality in the face of principle of free establishment. In context of professions, right of establishment could not be given effect b/c there needed to be some level of harmonization between job markets. But in the case, the discrimination was not b/c Reyners had a Dutch law degree, it was b/c he was Dutch. Thus, ECJ enforced principle of non-discrimination on grounds of nationality
Defrenne v. SABENA
If the rights contained in a measure are conditional on some other measures being adopted – whether further legislative action at EU level or some implementing act by the Member State – it will not be directly effective.
However, the Court has again tried to give effect to provisions even where they imply that further legislative action or implementation may be required. It has instead sought to give effect to the core underlying obligation
Defrenne was flight attendant at Belgian airline SABENA; brought series of cases in Belgian courts; wanted to rely on EC treaty that prohibited discrimination of pay between men & women; MS had positive duty to follow this provision. But how to determine whether men & women are paid differently? Who is the relative comparator? Esp in labour markets which are gender-segregated; have to use job evaluative schemes. Was this unconditional?
ECJ had no problem giving this provision direct effect; didn’t matter whether it was a positive or negative obligation; in fact it was possible to discover whether there was differential treatment in pay
Thus, enforced principle of non-discrimination on grounds of sex
NB also the case is an example of Treaty provisions having horizontal direct effect. in certain circumstances provisions of the Treaty may also be enforced against private defendants i.e. individuals or bodies whose legal status is governed by private law: horizontal direct effect. This is not a general phenomenon of the direct effect of EU law and is restricted to certain circumstances. Indeed, one criticism of the Court is that it has not articulated a coherent vision of why certain provisions of the treaty can be relied upon against private parties.
The Court has been particularly keen to ensure that important legal principles enshrined in EU treaties apply throughout the labour market and not just the public sector. This includes provisions relating to gender equality in pay and non-discrimination on grounds of nationality:
Baumbast v United Kingdom
If the rights contained in a measure are conditional on some other measures being adopted – whether further legislative action at EU level or some implementing act by the Member State – it will not be directly effective.
However, the Court has again tried to give effect to provisions even where they imply that further legislative action or implementation may be required. It has instead sought to give effect to the core underlying obligation.
The Court has also emphasized the importance of judicial review itself as a means of determining whether certain conditions have been met that might then permit a right or duty to be enforced: “the application of the limitations and conditions acknowledged in Article 18(1) EC in respect of the exercise of that right of residence is subject to judicial review. Consequently, any limitations and conditions imposed on that right do not prevent the provisions of Article 18(1) EC from conferring on individuals rights which are enforceable by them and which the national courts must protect.”
Conditional right may be enforced if JR can determine whether conditions are met. Thus, court has been creative in its application of justiciability test for direct effect
Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW)
Regarding the horizontal direct effect of Treaty provisions, recently, the Court of Justice has broken new ground in applying treaty rules on the free movement of goods in the context of obstacles arising from the standards-setting activities of a private association. Somewhat by analogy with the horizontal application of treaty rules to the rule-setting activities of sporting bodies, it was suggested that these private associations were effectively setting the rules and standards governing the conditions on which goods could be placed on the market. It was as if the public legislature had delegated this task to the associations. This suggests that private bodies carrying out public functions may be bodies against whom treaties can be enforced:
“In such circumstances, it is clear that a body such as the DVGW, by virtue of its authority to certify the products, in reality holds the power to regulate the entry into the German market of products such as the copper fittings at issue in the main proceedings.
Accordingly, the answer to the first question is that Article [34 TFEU] must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body. “
Commission v Germany (Beer Purity)
There are good reasons to think that general principles of EU law ought not to give rise to direct effects in national legal systems. After all, the general principles are unwritten norms recognized by the EU courts, and their generality and abstraction might be considered to be too open-ended to meet the justiciability test of being sufficiently clear and precise. Moreover, the general principles are primarily a means of controlling the legality of the activities of the EU institutions. In that way they are more likely to be utilized by the EU courts when exercising their jurisdiction under Article 263 TFEU when reviewing the legality of the acts of the institutions.
However, general principles do condition the legality of actions by Member States whenever they implement EU law or otherwise exercise powers that are limited or conditioned by EU law. The most obvious example of this is the principle of proportionality. We have already seen the way in which this general principle is given express written provision in Article 5(4) TEU to condition the legality of the acts of the EU institutions. However, the proportionality principle also governs the legality of Member State action e.g. whenever a state wishes to derogate from its free movement obligations:
“The Court has also consistently held [Cassis de Dijon] and [de Smedt] that “in the absence of common rules relating to the marketing of the products concerned, obstacles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and to imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements relating inter alia to consumer protection. It is also necessary for such rules to be proportionate to the aim in view. If a member state has a choice between various measures to attain the same objective it should choose the means which least restricts the free movement of goods .”
Mangold v Rüdiger Helm
Re: horizontal direct effect of general principles
Judgments of the ECJ which have identified substantive general principles such as non-discrimination on grounds of age, and their application in litigation between private parties has been controversial.
Concerned whether German law that prohibited fixed-term contracts for older workers was age-discrimination. There was a Directive that prohibited age discrimination in employment but at the time, it was not yet transposed into national law and was not fully effective.
Ct reasoned: while Directive could not be transposed, there was GP against age discrimination; because German rules on fixed-term contracts fell w/in scope of different Directive (on fixed term contracts) that was enforced, MS was acting in implementation of EU law and was bound to abide by general principles of EU law, including against discrimination
Here, general principles of age discrimination applied horizontally
RE: interaction between directives and general principles
We identified previously that general principles were capable of being invoked in national courts to review the legality of measures taken by a Member State when acting within the scope of EU law. We also noted that this could arise in the context of litigation between private parties. Yet this underplays the important interaction between general principles and directives where the general principle at issue is given concrete expression in a directive but that directive cannot itself have direct effect because:
o the transposition period has not ended, and/or
o the situation is a horizontal one;
The Mangold case discussed previously, highlights the issue. The case concerned German rules designed to keep older workers in the labour market by allowing employers the flexibility to employ older workers on fixed term contracts. Rules on fixed term contracts had been agreed at EU level (Directive 1999/70/EC) which had been implemented in German law. The issue was whether in implementing the EU rules on fixed term contracts, the Member State had introduced age discrimination contrary to Directive 2000/78.
There were two apparent problems for the plaintiff in this case. The first was that the transposition date for Directive 2000/78 had not yet expired. Moreover, this was clearly a horizontal situation. In such a circumstance there was no way in which the direct effect of Directive 2000/78 could be invoked.
However, the Court took the view that implementing the Directive on part-time work (Directive 1999/70) brought the Member State within the scope of EU law which allowed it to apply a general principle of non-discrimination on grounds of age rather than seeking to apply Directive 2007/78 itself. it viewed the Directive as the mere expression of a general principle of non-discrimination on grounds of age.
Seda Kücükdeveci v Swedex GmbH & Co. KG
Again concerned w/ age discrimination; again horizontal situation. K had been dismissed by Swedex; issue was what period of notice had to be given to her, where, under Swedish rules, the notice period did not include periods of employment before age of 25. Ct again held: principle against age discrimination was part of EU law; application fell w/in scope of EU law and could be relied on by the plaintiff in the case.
RE: interaction between directives and general principles
We have a similar scenario to that in Mangold but in this case the transposition period had expired. The Court begins by repeating that a directive cannot of itself impose an obligation on a private party and so there can be no direct effect. It then repeats the obligation on national courts to seek an interpretation of national law in conformity with the directive but it is clear that the national rule could not be interpreted to conform to the directive. So instead, and following Mangold, it treats the national law as falling within the scope of EU law because the deadline for the transposition of the directive had expired. And as with Mangold the effect is to preclude the application of the national legislation insofar as it is incompatible with the general principle against age discrimination.
Birgit Bartsch
General principles of EU law can be enforced in proceedings in national courts to review the legality of national measures.
However, there needs to be SOME LINK that brings the national rules within the framework of EU law (e.g. they implement a provision of EU law): absent that link, the general principles of EU law cannot be invoked:
“In [Mangold], the national rules in question were a measure implementing a Community directive, namely, Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43), by means of which those rules were thus brought within the scope of Community law (see Mangold, paragraph 75). By contrast, the guidelines at issue in the main proceedings do not correspond to measures transposing Community provisions.”
Rule excluded pension for a spouse if spouse was more than 15 years younger than the partner. Was this age discrimination? Could have been, but nothing linked the case to EU law
Pelckmans Turnout NV
As we saw in the discussion of general principles, the legality of national measures can only be reviewed in light of the Charter where there is a factor that connects the national measure to EU law (the Charter itself is not a sufficient link):
It should also be remembered that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law.
That provision confirms the Court’s settled case-law, according to which the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations.
It follows that, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction.
Association de médiation sociale (AMS)
Can the Charter be invoked in proceedings between private parties?
The Court had to determine whether Article 27 of the Charter on the provision of information to, and consultation of, workers, was capable of being invoked in proceedings between private parties. In the end, the Court concluded that Article 27 could not be relied upon but not because the Charter was incapable of having horizontal effects but instead because the particular provision was not normatively sufficiently precise and unconditional to be justiciable:
“It is therefore clear from the wording of Article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law. In this connection, the facts of the case may be distinguished from those which gave rise to Kücükdeveci in so far as the principle of non‑discrimination on grounds of age at issue in that case, laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such.”
Benkharbouche v Sudanese Embassy
That the Charter may give rise to rights justiciable in national courts in proceedings between private parties has been upheld by the English Court of Appeal:
Per Lord Dyson:
The CJEU did not, however, go on to make it clear which rights and principles contained in the EU Charter might be capable of having horizontal direct effect, and which would not. In our judgement, however, Article 47 must fall into the category of Charter provisions that can be the subject of horizontal direct effect. It follows from the approach in Kücükdeveci and AMS that EU Charter provisions which reflect general principles of EU law will do so.
