EU Law continue (from acts for annulment)

Question 1

Action against failure of an institution to act under article 265 TFEU

Answer 1

“Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established…”

Question 2

What may be challenged under Art 265 TFEU?

Answer 2

• Regarded as ‘the other side of the coin’ from actions under Art 263 TFEU
• Failure to act may be used to compel an institution to fulfil its union obligations
• An action will only be available where the applicant can show that such an obligation exists

Question 3

Who has the right to challenge under Art 265 TFEU?

Answer 3

• Distinction between status of applicants
• Individuals may only challenge a failure to act when it concerns a binding act of which they would have been the addressee and in which they are able to establish direct and individual concern, or direct concern only in the case of a regulatory act that does not entail implementing measures

Question 4

What are the relevant time limits for challenging an institution under Art 265 TFEU?

Answer 4

• Treaty does not specify any time limit during which an action must be initiated, but applicant must approach institution concerned beforehand and make clear that if it does not comply with union obligations to an act within 2 months, it will be subject to challenge
• Institution then has 2 months to define its position
• If this isn’t done, applicant has further 2 months within which to bring to action

Question 5

What are the consequences of a successful challenge under art 265 tfeu?

Answer 5

• If action is upheld, court will declare that failure to act is contrary to the treaty and art 266 requires that the institution ‘must take the necessary measures to comply with the judgement of the CJ’ within a reasonable period of time
• If institution has defined its position but not adopted the dispute measure, it is not possible to bring an action for ‘failure to act’

Question 6

Plea of illegality under art 277 TFEU

Answer 6

• Provides for a challenge to the act of an institution
• A plea of illegality under this act is an indirect action
• It is only available as a defence where other proceedings have been brought against the applicant and my be pleaded only in the course of proceedings which are already underway on other grounds
• If this plea succeeds, although the regulation itself will not be annulled, its basis for the decision in question will be ‘inapplicable’ and the decision will be void

Question 7

Plea of illegality under art 277 TFEU

Answer 7

• Provides for a challenge to the act of an institution
• A plea of illegality under this act is an indirect action
• It is only available as a defence where other proceedings have been brought against the applicant and my be pleaded only in the course of proceedings which are already underway on other grounds
• If this plea succeeds, although the regulation itself will not be annulled, its basis for the decision in question will be ‘inapplicable’ and the decision will be void

Question 8

What does art 267 TFEU enable?

Answer 8

• Enables national courts and tribunals to refer questions of european union law that require to be decided in a case pending before them to the CJEU for a ruling
• In the future, the general court may be granted jurisdiction over certain art 267 actions, via amendments to the statute of the court of justice (art 256.3)
• This procedure has also proved to be the springboard for the development of some of the most fundamental concepts of union law, such as direct effect and supremacy

Question 9

What is a benefit of the preliminary ruling procedure?

Answer 9

The preliminary ruling procedure gas allowed them to mount challenges to the validity of union acts in a manner which is much less restrictive that the procedural requirements of judicial review

Question 10

What is the preliminary rulings procedure for?

Answer 10

• An indirect action involving the national court hearing a case concerning a point of union law and asking for guidance on its interpretation from CJEU
• Represents a dialogue between a national court and the CJEU
• Parties in the case cannot compel a national judge to make a request for a preliminary ruling to Luxembourg

Question 11

What does the preliminary rulings procedure involve?

Answer 11

• National court seeking guidance on a point of interpretation, or validity of european law by formulating a question(s) for clarification by CJEU
• The case in the national court is then suspended until a ruling is given
• CJ does not investigate the facts of the case, nor does it apply the law to the case. It simply clarifies the point of European law
• The judgement is binding on national court referring the q, who then continues the case and gives judgement in light of CJ interpretation

Question 12

What does the preliminary rulings procedure involve?

Answer 12

• National court seeking guidance on a point of interpretation, or validity of european law by formulating a question(s) for clarification by CJEU
• The case in the national court is then suspended until a ruling is given
• CJ does not investigate the facts of the case, nor does it apply the law to the case. It simply clarifies the point of European law
• The judgement is binding on national court referring the q, who then continues the case and gives judgement in light of CJ interpretation

Question 13

What are the 2 powers of CJ concerning preliminary rulings?

Answer 13

• Court’s interpretation of union law
• Power to rule on the validity of acts of the institutions
  (Does not have the power to call into question the validity of the founding constitutional texts, such as TEU, TFEU and Euratom Treaty)

Question 14

What may the CJ look at when making interpretations?

Answer 14

• Text of the treaties
• General scheme of treaty as a whole
• Broad policy objectives of treaty

Question 15

Does art 267 contain any restrictions as to grounds on which validity of union acts may be contested?

Answer 15

No

Question 16

Is there a time limit in which questions of validity may be raised under art 267?

Answer 16

No

Question 17

Is there a time limit in which questions of validity may be raised under art 267?

Answer 17

No

Question 18

What is a compulsory reference?

Answer 18

‘a court against whose decisions there is no judicial remedy’

• If a question of union law - interpretation or validity - is raised before a court from which there is no appeal, then that court is bound to send a question to the european court
• Failure to do so invoke the liability of the MS
• The purpose of this is to avoid a mistaken interpretation of union law being given by the highest courts in the land, with other courts bound by that decision through precedent

Question 19

Which courts in a MS are subject to the obligation to refer?

Answer 19

2 theories:

1. Abstract theory: only National courts which are always a court of last resort in the hierarchy for judicial precedent (e.g. Supreme Court in Scotland)
2. Concrete theory: Court of appeal or, in exceptional case, Scottish court of session when leave of appeal to the house of lords has been refused

Question 20

What are the essential characteristics of ‘any court or tribunal’ within union context?

Answer 20

The body:

• Is established by law
• is permanent
• has compulsory jurisdiction
• its procedure is inter pares
• applies the rule of law
• is independent

Question 21

Who does not have locus standi to submit questions for preliminary rulings?

Answer 21

Parliaments
Governments
Union institutions

Question 22

What are the 3 circumstances in which a national court of last resort need not refer a question in the case of CILFIT [1982]

Answer 22

• Where a question of union law is irrelevant to the case at issue
• Where the point has already been decided by a previous decision of the CJ (acte eclaire)
• If the correct application of union law is so obvious as to leave no doubt as to the manner in which the matter is to be resolved (acte clair)
• where the matter is equally obvious to the courts of the other MS and to the CJ

Question 23

What are the problems if a national supreme court were not to ask for a preliminary ruling in the previous circumstances

Answer 23

• EU law is drafted in several different languages all of them equally authentic and binding, so any interpretation by a national court would require a comparison of all different language versions
• Union law has its own particular terminology, such legal concepts do not necessarily have the same meaning in union law as they do in national law
• union law must always be interpreted in context and in the light of the evolution of union law at that particular time, in other words, the interpretation is by the teleological method

Question 24

The preliminary rulings procedure……

Answer 24

• gives individuals the opportunity for an indirect challenge to the validity of union law within their own national courts
• allows an individual to obtain domestic remedies which would otherwise not be available in the event of a direct challenge under art 263
• is a court-to-court dialogue only
• provides guidance to a national court when applying the law
• is not an appeals procedure
• allows union law to be interpreted by 1 authoritative source in a consistent and uniform manner throughout all member states
• has allowed the CJEU to extend the scope and effectiveness of the union legal order
• is not limited to the 4 grounds of review essential under art 263
• may be raised by a national court at any time
• must be raised by a national court or tribunal (within union context) unless national court applies CILFIT doctrine
• binds the court or tribunal which made the reference to the court of justice

Question 25

The preliminary rulings procedure……

Answer 25

• gives individuals the opportunity for an indirect challenge to the validity of union law within their own national courts
• allows an individual to obtain domestic remedies which would otherwise not be available in the event of a direct challenge under art 263
• is a court-to-court dialogue only
• provides guidance to a national court when applying the law
• is not an appeals procedure
• allows union law to be interpreted by 1 authoritative source in a consistent and uniform manner throughout all member states
• has allowed the CJEU to extend the scope and effectiveness of the union legal order
• is not limited to the 4 grounds of review essential under art 263
• may be raised by a national court at any time
• must be raised by a national court or tribunal (within union context) unless national court applies CILFIT doctrine
• binds the court or tribunal which made the reference to the court of justice

Question 26

Why was the area of freedom, security and justice necessary?

Answer 26

• Further liberalisation in relation to European free movement would need to be accompanied by corresponding measures to ensure that the internal market did not result in increased criminality

Question 27

Why was the Trevi group set up?

Answer 27

To tackle the threat posed to economic property posed by terrorism (1975)
Remit widened to counter trafficking in drugs and arms (1985)

Question 28

Why was the 3 pillar structure of Maastricht born?

Answer 28

Agreement of pooling resources could only be secured on a weaker form of intergovernmental co-operation for action in the fields of foreign and security policy and justice and home affairs and limited scope for engaging in closer co-operation

Question 29

When wad the concept of an area of freedom, security and justice introduced?

Answer 29

Introduced to EU law by the Treaty of Amsterdam (which also brought Schengen into the legal structure)
- Concept straddled the 3 pillars and was designed to counter the perception that the free movement of rights of the EU’s internal market and the abolition of internal border checks could become a criminal’s charter

Question 30

When wad the concept of an area of freedom, security and justice introduced?

Answer 30

Introduced to EU law by the Treaty of Amsterdam (which also brought Schengen into the legal structure)
- Concept straddled the 3 pillars and was designed to counter the perception that the free movement of rights of the EU’s internal market and the abolition of internal border checks could become a criminal’s charter

Question 31

What was one of the most significant achievements of the 5 year plan (Tampere programme) for the Area?

Answer 31

The promulgation of the framework decision on the European Arrest Warrant

Question 32

What has the Tampere Programme been replaced by?

Answer 32

The Hague Programme

The Stockholm programme

Question 33

Why did the lisbon treaty abolish the 3 pillar structure?

Answer 33

To pave the way for more coherent and consistent action in the policy fields

Question 34

Why is the power of the EU to take action in the field of freedom, security and justice limited?

Answer 34

Limited by the principle of subsidiarity because the AFSJ is a shared competence

Question 35

After the Treaty of Lisbon, what policy areas did the ARSJ encompass?

Answer 35

• action to underpin the schengen area principles
• the free movement of persons and citizenship, including action on visa, immigration and asylum policy, and the protection of fundamental rights and data

Question 36

After the Treaty of Lisbon, what policy areas did the ARSJ encompass?

Answer 36

• action to underpin the schengen area principles
• the free movement of persons and citizenship, including action on visa, immigration and asylum policy, and the protection of fundamental rights and data
• action to prevent (organised) crime, sexual offences, racism, xenophobia and terrorism and to coordinate drugs policy
• to provide for an EU external borders and relations policy including provisions on EU enlargements
• administrative cooperation between police customs, and european judiciary (civil and crime)

Question 37

What is a further impediment to compliance with AFSJ rules?

Answer 37

CJ does not have jurisdiction to review the validity or proportionality of actions of national police or law enforcement in relation to maintaining law and order and internal security

Question 38

What MS are not in the schengen agreement?

Answer 38

UK, Ireland, Bulgaria, Cyprus, Romania

Question 39

What non MS are in schengen agreement?

Answer 39

Iceland, Norway and Switzerland

Question 40

What are schnegen’s objectives?

Answer 40

• Abolition of checks on persons at internal borders

- Corresponding strengthening of the common external border controls (Schengen borders code)

Question 41

How are schengen’s objectives achieved?

Answer 41

• Harmonising the conditions of entry and rules on visas
• Provides for police and judicial cooperation across the territory
• Engage in ‘hot’ pursuit of suspects and criminal

Question 42

How are schengen’s objectives achieved?

Answer 42

• Harmonising the conditions of entry and rules on visas
• Provides for police and judicial cooperation across the territory
• Engage in ‘hot’ pursuit of suspects and criminal

Question 43

What is the common european asylum system?

Answer 43

• A number of laws designed to streamline to process of applying for european asylum and protection

Question 44

What is the Dublin Regulation?

Answer 44

• Outlines the rules applicable for determining the MS responsible for examining an asylum application
• Rules designed to bolster the free movement of persons through limiting the scope for 3rd country nationals to engage in forum shoppingg as regards asylum applications

Question 45

What does the qualification directive do?

Answer 45

Provides for uniformity of interpretation as to who is to be offered EU protection

Question 46

What do the Reception directive, Asylum Procedures Directive and Temporary Protection directive do?

Answer 46

Set out the minimum standards of treatment and rights to be enjoyed by asylum seekers and refugees

Question 47

What do the Reception directive, Asylum Procedures Directive and Temporary Protection directive do?

Answer 47

Set out the minimum standards of treatment and rights to be enjoyed by asylum seekers and refugees

Question 48

What was the main achievement of the treaty of amsterdam?

Answer 48

fundamental constitutional reorganisation of Title VI of the (then) Treaty on European Union, drawing some of its activities from the Union into the Community sphere—or, from the third into the first pillar—and creating treaty authority (primarily but not wholly within the first pillar) for the achievement of, in the new jargon, an ‘area of freedom, security and justice’, sometimes called JLS, for justice, liberté et sécurité.

Question 49

What did the Tampere Council say the 4 essential areas to embrace were in creating AFSJ?

Answer 49

▪ a common asylum and immigration policy;
▪ better access to justice (including mutual recognition and enforcement of judicial decisions, increased convergence in procedural law);
▪ coordinated action against crime; and
▪ integrated external action.

Question 50

Why was Europol established?

Answer 50

(European Law Enforcement Agency)
Established to support and strengthen mutual cooperation between MS Police authorities and other law enforcement services

Question 51

What is CEPOL?

Answer 51

European Police College

• Provides training for senior police officers throughout EU
• Facilitates cooperative networks between the national training centres

Question 52

What is EUROJUST?

Answer 52

• EU’s judicial co-operation unit
• Comprises 1 member from each MS
• Either judges, prosecutors or police officers
• Designed to assist in the fight against serious crime, through facilitating cooperation in the investigation and prosecution processes
• Improves cooperation between competent authorities of MS by facilitating the execution of international mutual legal assistance and the implementation of extradition and transfer requests

Question 53

What is EUROJUST?

Answer 53

• EU’s judicial co-operation unit
• Comprises 1 member from each MS
• Either judges, prosecutors or police officers
• Designed to assist in the fight against serious crime, through facilitating cooperation in the investigation and prosecution processes
• Improves cooperation between competent authorities of MS by facilitating the execution of international mutual legal assistance and the implementation of extradition and transfer requests

Question 54

Why was the European Arrest Warrant created in 2002?

Answer 54

Because the creation of a single travel zone required that extradition be abolished and replaced with a faster system of surrender for accused persons and prisoners, alongside more efficient enforcement of criminal judgements

Question 55

Come back to AFSJ

Answer 55

COME BACK TO AFSJ

Question 56

When was the concept of citizenship introduced into EU Law?

Answer 56

By the Maastricht Treaty

Question 57

Where is the concept of citizenship found?

Answer 57

Arts 20-25 TFEU

Charter of Fundamental Rights

Question 58

What is EU citizenship?

Answer 58

Definition has been progressively interpreted by CJEU: now offers autonomous rights for European Individuals, independently of the other substantive rights set out in treaties

Question 59

Who has EU citizenship?

Answer 59

Art 20:
‘Citizenship of the union is hereby established. Every person holding the nationality of a MS shall be a citizen of the union. Citizenship shall be additional to and not replace national citizenship’
- Citizenship is dependent upon national rules of MS

Question 60

Citizenship rights according to TFEU?

Answer 60

• to move freely and reside in the territory of MS (art 21 tfeu)
• to vote and stand as a candidate in local and european parliament elections in the MS of residence (art 22 TFEU)
• to protection, in a non-EU country in which the citizen’s own MS is not represented, by the diplomatic or consular authorities of any other MS (art 23 tfeu)
• to petition the european parliament and to apply to the european ombudsman and to receive a reply in the citizen’s own language (art 24 tfeu)

Question 61

Citizenship rights according to TFEU?

Answer 61

• to move freely and reside in the territory of MS (art 21 tfeu)
• to vote and stand as a candidate in local and european parliament elections in the MS of residence (art 22 TFEU)
• to protection, in a non-EU country in which the citizen’s own MS is not represented, by the diplomatic or consular authorities of any other MS (art 23 tfeu)
• to petition the european parliament and to apply to the european ombudsman and to receive a reply in the citizen’s own language (art 24 tfeu)

Question 62

What happened in the case of Grzelczyk [2001]?

Answer 62

Grzelczyk was a French national studying in Belgium. In his fourth year of study he applied for payment of the minimex, a non-contributory minimum subsistence allowance. Payment was initially granted this, but withdrew it after the Belgian minister decided that Grzelczyk was not entitled to it since he was not a Belgian national.
ECJ: as a lawfully resident EU citizen, Grzelczyk was entitled to equal treatment on grounds of nationality under Art. 18 TFEU, in relation to benefits which fall within the scope of application of the Treaty.
Union citizenship is destined to be the fundamental status of nationals of the MS

Question 63

What happened in the case of Martinez Sala [1998]?

Answer 63

Martinez-Sala was a Spanish national and long-term resident in Germany where she had worked from time to time. She was refused child-rearing allowance by the German authorities after she gave birth, on the basis that her residence permit had expired (although she applied for a new one).
Held: As long as she was lawfully a legal resident; she has the right to equal treatment. Used articles 18 and 20 together as legal basis (non-discrimination and right to reside).

Question 64

What happened in Baumbast [2002]?

Answer 64

German worker had his family with him, including wife from outside the EU and one child of EU citizenship. The UK attempted to deport the man, where by his wife would not be allowed to stay. However, family could stay to look after EU child that had the right to be there (disproportionate to deport). Basically, they used the child’s citizenship alone to obtain rights

Question 65

What happened in Zhu and Chen [2004]?

Answer 65

A Chinese couple visited the UK, and the wife gave birth to a daughter whilst in Belfast. The child gained Irish nationality and thus EU citizenship. Mrs Chen moved to cardiff and sought residency for her family, which was denied.
CJ: By virtue of art 2.1 (and applicable to 2ndary legislation) parents could not be deprived of their right to reside with their child, who is a union citizen.

Question 66

What happened in Zhu and Chen [2004]?

Answer 66

A Chinese couple visited the UK, and the wife gave birth to a daughter whilst in Belfast. The child gained Irish nationality and thus EU citizenship. Mrs Chen moved to cardiff and sought residency for her family, which was denied.
CJ: By virtue of art 2.1 (and applicable to 2ndary legislation) parents could not be deprived of their right to reside with their child, who is a union citizen.

Question 67

What rights are covered in Directive 2004/38?

Answer 67

• leave territory of MS and enter another MS, subject to possession of a passport or valid identity card. union citizens must be granted or be able to renew a passport or identity card . non eu members must possess a valid passport
• enter another ms upon presentation of valid identity card/passport (Art 5) Family members can enter with a valid passport. Host Ms may require an entry visa for 3rd country national family members
• to reside in the territory of the host MS for up to 3 months without any conditions or formalities other than those applicable to possession of a valid passport/identity card, as applicable
• To reside in the territory of host ms beyond 3 months where one of the following criteria is satisfied
  1. union citizen is a worker/self-emplited person in host MS
  2. union citizen and family members are not a burden on the social assistance system of host ms (‘sufficient resources’)
  3. union citizen is enrolled on a course of study at a recognised educational establishment, has a comprehensive sickness insurance and ‘sufficient resources’ to prevent him/her becoming a burden
  4. more liberal rules apply when citizen is a child, dependent on parent who is not national of host ms

Question 68

‘Members of a citizen’s family’ art 2(2) directive 2004/38?

Answer 68

• a citizen’s spouse/partner (where national law treats registered partnerships and marriages as equivalent) and descendants who are under the age of 21 or are dependents, including those of spouse/partner
• dependent relatives in the ascending line of the citizen and his/her spouse/partner

Question 69

How are 3rd country national spouses affected?

Answer 69

They do not need to have previously lawfully resided in another MS before exercising their parasitic right to free movement (Metock)

Question 70

What happens if a married couple separates?

Answer 70

The spouse’s rights to not come to an end until they are divorced

Question 71

What happens in divorce/termination of partnership?

Answer 71

• Rights of 2004/38 extend to partners in a relationship analogous to marriage. in case of termination of partnership, family member explicitly granted the right to remain in host territory (art 13)
• For ex partners/spouses who have 3rd country nationality, the right to reside will depend upon the existence of a number of factors, such as, sufficient length of the relationship, the custody and access situation as regards children of the relationship and the prior existence of ‘particularly difficult circumstances’ such as domestic violence

Question 72

What does art 23 of directive 2004/38 say?

Answer 72

Member’s of a citizens family are entitled to migrate with the EU citizen regardless of their own nationality, as long at the citizen they are parasitic upon is an EU national exercising right of free movement. The family members have a right to reside and to take up employment throughout any territory of the same state even if they are not nationals of EU.

Question 73

What happens in the case of residence beyond 3 months?

Answer 73

The directive permits MS to impose certain registration formalities upon the union citizen and his/her family members (arts 8 and 9)

• Host ms must provide for registration to be open for at least 3 months after arrival
• A registration certificate will be issued (where union citizen presents valid identity card/passport and proof of other employment/enrolment in a study course, proof of sufficient resources, and sickness insurance)
• Certificate will be given to EU nationalfamily members upon presentation of valid identity card/passport and documentary evidence of the relevant family relationship
• Non-EU national family members must comply with requirements of art 9 to 11. Must apply for a residence card, which will be issued on presentation of passport, official evidence of family relationship and registration certificate of EU citizen

Question 74

Does a failure to comply with formalities regarding entry and residence justify a deportation order?

Answer 74

NO

- Sanctions for non-compliance must be non-discriminatory and proportionate (arts 8(2) and 9 (3)) of directive

Question 75

How are union employment rights provided for?

Answer 75

Extensive system of treaty provisions, secondary legislation and court case law
- Provides for system of employment rights throughout the union prohibiting national legislation which might place other union nationals at a disadvantage when they seek to exercise their right of free movement
(art 18 and 21 TFEU)

Question 76

What are the important provisions promoting free movement of workers?

Answer 76

• Art 45 tfeu defines what is meant by free movement of workers
• art 46 relates to implementation of 45 by setting out legislative manner in which free movement goal is to be achieved
• art 47 provides for exchange of young workers
• art 48 relates to social security in relation to the free movement of workers
• art 18 provides a general prohibition of discrimination on grounds of nationality
• art 157 on equal pay for equal work
• art 19 authorises council and parliament to take legislative action to combat discriination

Question 77

Why was directive 2004/38 introduced?

Answer 77

Commission introduced it to consolidate the law for rights of workers etc

Question 78

Article 45 TFEU is ….

Answer 78

… directly effective, both vertically against a MS and horizontally against employers

Question 79

What are some restrictions to free movement?

Answer 79

• A worker must exercise his union right to free movement in order to benefit from employment rights in another MS. Union rights do not apply if a worker moves from one region of his home country to another
• MS may also restrict access to employment of other MS nationals on the grounds of public policy, security and health
• MS may reserve access to employment in the public services to their own nationals under certain conditions

Question 80

How was the restriction that MS may reserve employment in public services to their own nationals interpreted?

Answer 80

Sotgiu v Deutsche Bundespost [1974]

• Article 45(4) tfeu only applied to certain activities connected with the exercise of official authority
• Since the employees concerned worked for branches of govt of ms, the legal destinations of the jobs could easily be varied by ms themselves. These designations should therefore be set by the court to prevent discrimination against nationals from other MS
• Article 45(4) TFEU only applied to access to employment, not to conditions of work, once a person had been employed. If a person was sufficiently loyal or trustworthy to be admitted to such employment in the first place, there were no grounds for paying them less or treating them differently because of their nationality

Question 81

What is a worker?

Answer 81

In clarifying its scope, court has emphasised that ‘worker’ must have a union meaning inasmuch as it defines the scope of one of the fundamental freedoms of the union, thus must be interpreted widely.
Criteria for qualification: [Racanelli]
- person performs a service of economic value
- for and under the direction of another person
- receives payment for it

Question 82

Access to employment (Regulation 1612/68)

Answer 82

• Any national of a MS, irrespective of his residence, has the right to take up activity as a employed person and to pursue this activity within the territory of another MS in accordance with the provisions laid down governing the employment of nationals in that MS
• Restrictions on free movement of workers may be accepted where such restrictions pursue a legitimate aim that is justified in the public interest and is proportionate to that aim

Question 83

What is a worker and his family entitled to?

Answer 83

• All the housing rights and benefits accorded to national workers
• Children entitled to be admitted to general education etc under same conditions as MS nationals
• Parent (primary carer) can remain in host MS even where the parent does not have sufficient resources or comprehensive sickness insurance
• Entitled to same social and tax advantages

Question 84

Eligibility for employment

Answer 84

Arts 1-6 Regulation 1612/68

• Migrant workers from other MS can take up employment under same conditions as nationals
• MS must not specify discriminatory employment policies and companies must not operate such practices
• Cannot discriminate in methods of recruitment, advertising vacancies or setting eligibility standards to apply to employment
• Art 3(1): MS can impose conditions ‘relating to linguistic knowledge required by reason of the nature of the post to be filled
• Art 4: prohibits quota systems setting out what percentage of foreign nationals may be employed
• Art 5: similar assistance must be extended to nationals of other MS in finding employment as it is to national workers

Question 85

Equality of treatment within employment

Answer 85

• Art 7(1): workers from another MS must not be treated differently from national workers - especially regarding payment of wages or salary, dismissal or reinstatement, or re-employment in the event of unemployment
• Unless justified under art 45(3) TFEU

Question 86

Social and Tax advantages

Answer 86

• Art 7(2): no discrimination in social and tax advantages for workers
• Applies even when advantages are not related to employment - such as a war pension
• May remain if worker dies so family can benefit
• Does not cover social security benefits

Question 87

Vocational training

Answer 87

• Art 7(3) Regulation 1612/68
• Brown v Secretary of State for Scotland, the applicant had obtained sponsorship from a UK company prior to taking up a university place
• He then applied for a grant which was refused
• Court found that the course was not ‘vocational training’ within the meaning of the article (only available upon fulfilling criteria in Lawrie-Blum)
• Court decided that brown was not entitled to a grant despite his status of a worker because he ‘acquired that status exclusively as a result of his being accepted for admission to undertake the studies in question

Question 88

Right of permanent residence for workers and citizens

Answer 88

art. 45(3)(3) TFEU
- Union citizens and family members gain the right of permanent residence where they have legally resided in the host state for a continuous period of 5 years (time spent in prison doesn’t count)
- Temporary absences of 6 months or less or longer absences of up to a year will not invalidate claim for residency
- Absence of 2 years + will revoke right

Article 17 directive 2004/38: permanent residency granted before the expiry of 5 year qualification period to:

• retired workers/self employed
• workers/self employed who are unable to work
• frontier workers/self employed persons

Question 89

Under what conditions is right to permanent residency granted?

Answer 89

1. Retired workers/self employed: individual has worked in host MS for last 12 months, lived for previous 3 years and has now retired
2. incapacitated workers/self employed: individual has lived in ms for previous 2 years and has had to stop working. 2 year rule is inapplicable when incapacity occurred as a result of an occupational disease/accident
3. Frontier workers/self employed: individual worker has lived and worked in ms for 3 years, but works in another ms while continuing to live in the other

In all cases, family is allowed to stay permanently (art 12)

Question 90

Exceptions to the free movement of citizens: public policy and public security

Answer 90

Derogations must be:

• interpreted strictly (Van Duyn)
• proportionate to the objective pursued (art 27)
• based exclusively on the personal conduct of the person involved. Previous criminal convictions are not in themselves sufficient grounds for taking any measures such as deportation (Adoui and Cornuaille)

Question 91

Exceptions to the free movement of citizens: public health

Answer 91

• MS cannot rely on public health restrictions after 3 months have elapsed from the date of lawful arrival
• MS entitled to subject migrants to medical inspections at the point of arrival (free)
• Only diseases justifying restrictions are those with epidemic potential, or parasitic

Question 92

Exceptions to the free movement of citizens: procedural safeguards

Answer 92

• Individual should be notified in writing of any decision to restrict movement under art 27
• In the case of expulsion, MS must outline time limit by which person must leave (at least 1 month)
• Individuals must be granted access to judicial avenues of redress to appeal against decision
• Where individual appeals against expulsion and applies for a suspension, MS must not remove the individual (Except for where order is based on previous judicial decision, individual already had access to judicial review, or public security requires his/her approval)

Question 93

How can the aim of establishing an integrated market easily be frustrated?

Answer 93

By MS practising forms of protectionism designed to shield their national industries from the competitive pressures of imports

• most obviously done by making imports more expensive or setting invisible barriers such as different product, consumer and environmental standards
• prohibitions to prevent this

Question 94

3 areas concern prohibitions on:

Answer 94

• the imposition of customs duties (tariffs) and charges having equivalent effect to customs duties - arts 28 to 30
• discriminatory internal taxation art 110
• quantitative restrictions on imports and exports (bans and quotas) and measures having equivalent effect to quantitative restrictions arts 34-36

Question 95

Customs duties and charges having equivalent effect to customs duties

Answer 95

art 28 - common customs tariff: the same whenever goods cross an external border

• Once paid, then the goods are in free circulation throughout the MS
• MS do not have jurisdiction over the duty levied on goods from 3rd countries
• May not amend the rate nor may they keep the proceeds which now belong to the union as ‘own resources’
• Only the council can amend the tariff
• The tariff is part of the common customs code
• This codifies the law and rules applicable in relation to customs matter across EU

Question 96

Under art 28, what 2 measures must MS abolish?

Answer 96

• customs duties on imports and exports
• charges having equivalent effect to customs duties
  (Commission v Italy (re Export tax on art treasures) [1968])

Question 97

What are customs charges?

Answer 97

Taxes, duties and tariffs levied by the MS whenever goods cross borders

Question 98

What are charges having equivalent effect to customs duties?

Answer 98

• Not defined by the treaty
• Court held in Germany v Commission to mean (in this case) charges imposed on imports of agricultural products in the guise of administrative fees imposed in exchange for tasks undertaken by the authorities in the interest of, and at the request of, individuals
• Court ruled that they were still unilateral measures, imposed by the state of its own volition which, regardless of their label, and the means by which they were introduced, had the same discriminatory and protective effect as customs duties.

Question 99

What is the courts attitude regarding CHEEs?

Answer 99

• Treaty not to be circumvented by the form in which the charge was imposed (the form of the charge is irrelevant, the effect on trade between MS is all important)
• the prohibition applied whether or not the product was discriminatory or not
• whether or not the product on which the charge was imposed was in competition with domestic goods
• there were to be no exceptions

Question 100

What if a fee is charged in respect of some service given?

Answer 100

e. g. Health inspection, a quality check or offloading charge
- Court accepts that MS is allowed to charge a fee for services provided to an importer. But such a charge is not to be levied simply because goods cross a frontier.
- Service must be specific and must benefit the individual importer
- MUST be mandatory

Question 101

Charges for services authorised by union law do not constitute charges having equivalent effect as long as they satisfy 4 conditions:

Answer 101

1. the fee must not exceed the actual cost of the services rendered;
2. the service must be uniform; that is applying to both imports and domestic products
3. the service is prescribed by union law - a mandatory requirement - in the general interest of the union
4. the service promotes the free movement of goods
   VERY STRICT CONDITIONS
   - If fees are charged on any inspection which is not mandatory under union law, this constitutes an obstacle to the free movement of goods and is unlawful

Question 102

Discriminatory internal taxation

Answer 102

• second of the 3 sets of provisions within the treaty to guarantee the free movement of goods
• also relate to monetary charges levied by MS
• arts 28 and 30 tfeu prevent financial measures in the form of borders customs duties
• art 110 prevents a state from placing a fiscal disadvantage in the way of imported goods in competition with domestic goods, once they are within the state by ensuring that the internal taxation system of ms makes no distinction between imported and domestic product

Question 103

What distinguishes discriminatory internal taxation from a CHEE is:

Answer 103

• discriminatory internal taxation is imposed on BOTH imported and domestic products
• charges having equivalent effect to customs duties are imposed exclusively on the imported products

Question 104

What does art 110 tfeu deal with?

Answer 104

Imported products which are so similar to domestic products that they require the same tax treatment

• the goods do not need to be identical!
• ‘similar’ = goods that are broadly in competition with each other ‘with similar characteristics and meet the same needs from the point of view of the consumer’

Question 105

In what instances will the rule be condemned?

Answer 105

If national tax law influences consumer behaviour to an extent which affords indirect protection to the domestic product, e.g. through crystallising the current consumer habits of the population.

Question 106

What does art 110 prohibit against?

Answer 106

• discrimination against imports
• indirect protection of domestic products
  MS are free to set up systems of taxation which they consider most appropriate for each product
  Method of assessment: 2 different tax systems (one for domestic goods, one for similar imported products) cannot be justified

Question 107

What is indirect discrimination?

Answer 107

Less easy to detect: where tax rules do not differentiate between domestic/imported products re: tax levied but still, in effect, place greater burden on products from another MS

Question 108

What objective discrimination?

Answer 108

Even if a MS establishes a tax system based on factors which indirectly affects imports more drastically than domestic products, the court will allow a MS to plead that there was some objective policy reason acceptable to the union as a whole to justify its action.
In this way, the treaty rules are prevented from becoming too harsh

Question 109

What reasons may be appealed to to justify objective discrimination?

Answer 109

• use of raw materials
• processes employed in the production of goods
• general objectives of MS economic policy, such as environmental protection or development of regional policy

Question 110

The relationship between art 30 tfeu (customs charge) and art 110 tfeu (discriminatory taxation)

Answer 110

• A charge may not be examined under both at the same time
• In principle, if a charge is imposed exclusively on imported products it is likely to be a CHEE
• If a charge is levied on both domestic and imported products in a uniform manner, it is more likely to be part of a system of internal taxation
• In order to distinguish, court has applied a test based on the destination of the proceeds of the charge

Question 111

When can a charge, which appears to be part of a system of internal taxation, be considered a CHEE to a customs duty?

Answer 111

If the following conditions are met:
- the sole purpose of the charge must be to finance activities for the benefit of the taxed domestic product
- the taxed product and the domestic product benefiting from the charge must be the same
- any charges imposed on domestic products are made good in full
VERY STRICT CONDITIONS
- If all 3 exist, it is a CHEE

Question 112

Enforcing the rules

Answer 112

Since arts 28, 30 and 110 are directly effective, MS may be called upon in nationals courts to repay any customs duties or other charges which have been found to be illegal
(Amministrazione delle Finanze dello Stato v Simmenthal)
Delictual liability may also arise with regard to breaches of arts 30 and 110 by reason of the restrictive effect of a charge on imports from other MS

Question 113

Quantitative restrictions and MEEQRS

Answer 113

• Abolishing charges on goods passing between MS could not in itself ensure that goods moved freely throughout the union
• MS began to put up invisible barriers to trade which were not easily recognisable and as such were a more serious threat to the free movement of goods.
• Such measures were also capable of restricting the free movement of goods to a greater extent than charges

Question 114

How can a MS infringe the rules of QR?

Answer 114

• Either by acting or failing to act.
• Commission can take action against a MS for failing to take all necessary and proportionate measures to prevent the free movement of goods from being obstructed by the actions of private individuals

Question 115

Art 34 tfeu

Answer 115

‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between MS’

Question 116

Art 35 tfeu

Answer 116

‘Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between MS’

Question 117

Art 36 tfeu

Answer 117

• Provides for when the prohibitions in 34 and 35 will not apply because of specific justifications
• Allowed on several grounds as long as:
  They do not arbitrarily discriminate against goods from another MS and
  Are not a disguised restriction on trade between MS

Question 118

What does art 34 prevent?

Answer 118

• MS from imposing a numerical limit on the imports of a certain product in an effort to product their own products from competition from other MS.
• Concerns measures taken by MS, any public body, or any semi-public body.

Question 119

What are quantitative restrictions?

Answer 119

(Geddo v Ente nationale Risi)
Measures which amount to a “total or partial restraint on imports, exports or goods in transit”
Import bans, setting of quotas, etc

Question 120

What MEEQRs?

Answer 120

• More difficult to define
• Directive 70/50 (expired)
• s2
  Discriminatory/directly applicable measures:
• setting minimum/maximum sale prices
• fixing less favourable prices for imports
• lowering the value of imports by increasing its costs
• setting conditions of payment for imports differing from those of domestic products
• specifying conditions for packaging, composition, identification, size, weight etc. which would only apply to imports
• limiting publicity for imports compared to domestic goods
• making it mandatory for importers to have an agent in the importing state

Question 121

What are indistinctly applicable measures?

Answer 121

Measures that apply to both imports and exports but which may nevertheless restrict trade from abroad by, for example, setting disproportionately restrictive requirements on importers.

Question 122

Dassonville

Answer 122

see book

Question 123

van tiggele

Answer 123

see book

Question 124

Cassis de Dijon

Answer 124

see book

Question 125

Commission v Germany (re German beer purity laws)

Answer 125

see book

Question 126

Keck

Answer 126

see book

Question 127

What does art 35 require that art 34 does not?

Answer 127

Historically required discriminatory intent to be shown, in relation to MEQRs.

Question 128

Groenveld

Answer 128

see book

Question 129

Derogations

Answer 129

Art 36 provides for exceptions to the fundamental rule that all obstacles to the free movement of goods between MS should be abolished.
Court has stated that these exceptions should be interpreted strictly.
Scrutinises national rules which discriminate against goods from other MS before it confirms derogation.

Question 130

Art 36

Answer 130

2 parts

1: lists the exceptions to the prohibitions
2: goes on to warn ms that any derogation submitted must not be a means of arbitrary discrimination or a disguised restriction on intra-union trade

Question 131

What must a ms establish if it wants to claim a measure at issue has been adopted under an art 36 derogation?

Answer 131

• that it is necessary for the measure to be adopted (necessity test)
  AND
• that the measure chosen was the least restrictive means of achieving the objective (proportionality test)

Question 132

What does arbitrary discrimination mean?

Answer 132

The measure gives advantage to the marketing of domestic products - or imports - or exports from one MS at the expense of another

Question 133

What are disguised restrictions?

Answer 133

Measures which are ostensibly justified under art 36, but which have the effect of restricting the free movement of goods

Question 134

When can a MS not plead exemption through art 36?

Answer 134

Where the union has already taken action to make sure that there are harmonising measures/standards set up in a particular area, MS may not justify their own national rules which infringe art 34 and restrict intra union trade by pleading exemption through art 36.

Question 135

Public morality

Answer 135

• MS set out what constitutes public morality in accordance with their own scales of values.
• They must not impose double standards: one to prevent the sale and marketing of domestic products and another relating only to imports

Question 136

Conegate

Answer 136

see book

Question 137

Public Policy

Answer 137

• A ms must show the imports or exports in question would be a genuine and sufficiently serious threat to one of the fundamental interests of its society

Question 138

What measures have been ruled to be inapplicable to public policy derogation?

Answer 138

• avoidance of civil unrest which the national authorities were able to cope with
• restriction of criminal behaviour
• protection of consumers

Question 139

Protection of the health and life of humans, animals and plants

Answer 139

Court considers that the ‘health and life of humans ranks first among the interests protected’ by art 36

Question 140

Protection of national treasures possessing artistic, historic or archeological value

Answer 140

• MS entitled to determine the value of their national treasures and may determine restrictions on their imports
• Any protection afforded may not justify charges
• mid 1990s, legislation adopted to ensue that free movement of goods would not increase illegal exports of national treasures

Question 141

Protection of industrial and commercial property

Answer 141

Controversial in that it essentially serves private aims as opposed to public objectives, in that it operates to protect intellectual proper holders.
Since intellectual property protection has the potential to undermine the internal market, through partitioning of national markets, the court has made a fundamental distinction between the existence and exercise of the right.
Intellectual property owners may not exercise their rights where such action would threaten the coherency of the internal market.
Court has confirmed that intellectual property rights are subject to the concept of european exhaustion; that is one the owner has placed the good s on the single market, he/she cannot prevent further eu trade in the goods.

Question 142

Freedom of establishment and the right to supply and receive services

Answer 142

Usually considered together because the right of establishment allows ms nationals to set up business as self employed persons in another MS.
Allows them to take up and pursue activities in a host ms without discrimination on the grounds of nationality.

Question 143

Still need to do freedom of establishment

Answer 143

and social policy

Question 144

brasserie du pecheur

Answer 144

Brasserie du Pecheur just expanded on the Francovich tests for state liability. The conditions, clarified in Brasserie du Pecheur, are:
1) the rule of Union law breached must be intended to confer rights on the individual
2) the breach must be sufficiently serious
3) causation (i.e. damage/loss to individual must be caused by breach).
In terms of ‘sufficiently serious’, the court said it is necessary to consider whether the member state ‘manifestly and gravely disregarded the limits on its discretion’.
I think the conditions for Union liability are the same as those for state liability- In Bergaderm it was made clear that the Brasserie du Pecheur conditions apply to Union liability as well.