EU Law Cases
Case C-210/06 CARTESIO Okató és Szolgáltató [2008]
• CJEU /Preliminary Ruling Procedure • CJEU is not an appellate jurisdiction; rather it is an institution of a 'system of cooperation'
*Case 249/81 Commissionn v Ireland ('Buy Irish' Campaign) [1982]
• Commission Enforcement against MS • Campaign to make Irish consumers switch from purchasing imports to domestic goods
Case 230/78 Eridania v Ministro per l'agricoltura e le foreste [1979]
• Direct Effect in EU Law • Regulations have direct effect and are capable of creating individual rights which national courts must protect
Case 231/83 Centre Leclerc [1985]
• FM (Goods): Quantitative Restrictions: Public Policy as per Art.36 • French fixing minimum fuel retail prices = MEEQR under Article 34 TFEU. Argued this measure was needed to avoid public disorder. The CJEU rejects argument on facts BUT holds that public disorder does = public policy for Article 36 TFEU • Trying to maintain public order does fall within the scope of public policy
Case 21/79 Commission v Italy [1980]
• Re. Art.110 • Direct discrimination: where there is a clear difference between the tax imposed on domestic/imported goods • Regenerated petroleum case
*Case 28/62 Da Costa [1963]
• The questions referred were identical to those raised in an earlier CJEU case • CJEU = 'the authority of an interpretation under article [267] already given by the Court may deprive the obligation [to refer for a preliminary ruling] of its purpose and thus empty it of its substance' • Exception from the obligation to refer = limited to materially identical questions already answered by the CJEU (a narrow interpretation of acte éclairé) • Da Costa = Article 267 should not be interpreted literally. There are certain limits to the obligation to refer. • First case to show exception to the general rule that COLI must make reference to CJEU; limited to materially identical questions
Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987]
• This case found that the ECJ alone has exclusive jurisdiction to make judgments on the compatibility of EU law.
Opinion of AG Jacob in Case C-50/00 Unión de Pequeños Agricultores (UPA) [2002]
1) Individual concern = difficult test to satisfy 2) Individuals cannot force national courts to make a reference 3) Lack of effective judicial protection in some circumstances • UPA's challenge to regulation withdrawing aid for olive oil producers had been held inadmissible by the Court of First Instance. UPA had failed to establish individual concern • On appeal to the Court of Justice, the A-G proposed a new test for individual concern: 'the measure has, or is liable to have, a substantial adverse effect on his interests'. The Court of Justice rejected this test, reaffirming the existing case law • Test by AG Jacobs is much more generous "where by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests"
*Case C-160/14Ferreira da Silva e Brito [2015]
• Action against collective redundancy brought by Mr.Ferreira da Silva e Brito and 96 other employees in Portugal • Main issue = how is the concept of "transfer of business" to be interpreted in EU law? • Court of first instance and the appellate court come to different interpretations of the concept - Crucially, neither is a court of last instance • The Supreme Court of Justice believes it is "acte clair" doctrine and doesn't refer - It seems soooo obvious guyyyss; I'm not going to make a reference to the CJEU • Employees bring a new case and first instance courts ask CJEU whether Supreme Court was obliged to make a reference
*Case C-11/83 Piraiki-Patraiki v Commission [1985]
• Basic Test: Direct Concern • The applicants sought to annul a Commission decision authorizing France to impose quotas on cotton yarn from Greece • CJEU: Direct concern requires EU measure to directly affect claimant's legal situation and leave no discretion for implementing authorities • The possibility that France would not use its discretion was 'purely theoretical'; it had already restricted Greek yarn imports and requested permission to impose even stricter quotas. The applicants were therefore directly concerned with the decision
*Case C-25/62 Plaumann v Comission
• Basic Test: Individual Concern • Plaumann, a clementine importer, sought to challenge a Commission decision addressed to Germany, refusing it authorization to reduce customs duties on clementines • Persons other than those whom a decision is addressed are individually concerned only if the decision affects them 'by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons
*Case 283/81 CILFIT v Ministero della Sanità [1982]
• CJEU and purposive approach to interpretation • Many national courts adopt different practices • Italian Court of Cassation: the proper interpretation of EU law was so obvious that there was no genuine need to request an interpretation from the CJEU • CJEU: It must be equally obvious to the other national courts of other MS and to the CJEU in all 24 language versions • Established that National Courts of last instance do not need to refer when: 1) It has established that question is irrelevant 2) The EU law provision in question already interpreted by CJEU 3) The correct interpretation of EU law is "so obvious as to leave no scope for any reasonable doubt" in all 24 languages • In practice, Courts of last instance will need to make references anyways • Art.267 general rule as applies to last instance; da Costa [1963] established that for 'materially identical' cases you did not have to refer
Schmidbberger v Austria [2003]
• Clashes between FM and Fundamental Rights; application of proportionality test • Demonstration on the motorway between Austria and Italy (fairly engaged in cross-bborder trade) potentially hindering FM (goods) • On one hand we have the freedom of goods that is restricted by the demonstration and on the other we have the freedom of expression which took the form of a peaceful protest (no violence) • Proportionality: duration limited in time, space was also very limited (certain part of the motorway), all relevant and competent authorities had been warned in advance about the demonstration on the motorway, everything has been done properly and in advance • CJEU: All things considered, the demonstration could be seen as freedom of expression/a fundamental right, the restriction was considered to be justified
Laval [2007]
• Clashes between FM and Fundamental Rights; application of proportionality test • One of the most controversial judgements in the last decade • Latvian company posted workers in Sweden in the framework of provision of services (renovation of school) • Blockading action by a trade union of the host MS which is aimed at ensuring that workers posted in the framework of a transitional provision of services have their terms and conditions of employment fixed at a certain level, falls within the objective of protecting workers • Conflict between the right to strike (fundamental right) and providing services (fundamental freedom) • CJEU: industrial action of this kind falls under the protection of workers but cannot be considered justified in the light of the specific circumstances of the case
Omega [2004]
• Clashes between FM and Fundamental Rights; application of proportionality test • Prohibition on the commercial exploitation of games involving the simulation of acts of violence against persons (esp. representation of homicide) corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in Germany • CJEU: Invoking a restriction on Germany's specific understanding of what human dignity means in the constitution, to prevent this specific activity (laser-tag simulating killing other human beings) • CJEU engages with an exercise of judicial subsidiarity (well that's your specific understanding and there may be different understandings of what human dignity is within the Union) • CJEU: found restriction to be justified because it was not an outright ban on laser tag, but specific activity
*Case 26/62 Alegemene Transport - en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie de Belastingen [1963]
• Direct Effect in EU Law • There is direct effect of EU law if the rule is clear, precise, and unconditional (and no further implementing measure) • Art. 12 EEC [Art.30 TEU] contains a clear and unconditional prohibition • Dutch company imports chemicals from Germany and Dutch reclassify chemical -> higher customs duty
*Case 9/70 Grad v Finanzamt Traunstein (Leberpfenning) [1970]
• Direct Effect of Decisions • German transport company challenges German tax which they believe is contrary to an EU Decision (national laws on tax incompatible with EU Decision) • CJEU: found the German tax law incompatible with binding nature of Decisions because where decisions impose obligations on MS, the effectiveness of EU law would be weakened if nationals of that MS could not rely upon it in national courts
Case 148/78 Pubblico Ministero v Ratti [1979]
• Direct Effect of Directives • Ratti sells solvents and varnishes in Italy, some imported from Germany • Ratti sells them in compliance with EU Directives , but there is a stricter Italian law • There are 2 EU Directives requiring specific packaging and labelling • 1 Directive was already implemented, but the deadline for the second transposition period had not passed • CJEU: Ratti can rely upon implemented Directive: Estoppel • MS cannot benefit from non-compliance with Directives • But can't rely upon other Directive before end of transposition period
*Case 41/74 van Duyn v Home Office [1974]
• Direct Effect of Directives • UK Home Office refuses to allow Van Duyn into UK to work with Church of Scientology • EU Law = MS can deny EU nationals entry on grounds of public policy, public security and public health (Art.27 of Cit D) • EU Directive states that MS bans on public policy reasons must be based exclusively on personal conduct of person • However, UK had not implemented this aspect of the Directive and had planned to ban on reasons outwith personal conduct • CJEU: If we apply the rules of the Directive itself, and a broad interpretation of 'personal conduct', ultimately Van Duyn could not be let in
Case C 8/81 Becker
• Direct Effect of Directives and Estoppel • EU Directives contains tax exemptions • Germany has not implemented Directive • Becker applied for tax exemptions, German authorities refuse • Becker can rely on provisions of an unimplemented Directive against German State • "A MS which has not adopted, within the specified time limit, the implementing measures prescribed in the Directive, cannot raise the objection, as against individuals, that it has not fulfilled the obligations arising from the Directive"
*Case 353/00 Antonio Munoz [2001]
• Direct Effect of Regulations • Competitor sells grapes with labels that don't comply with standards of grape classification • Provision of EU Regulations can be relied upon by EU citizens in National Court • Munoz (in Spain) thinks the competitor is gaining an unfair advantage • Regulation does NOT confer rights specifically on Munoz • Purpose of regulation is to ensure proper quality • CJEU: ensuring quality of product and effectiveness of Regulation means Munoz must be able to rely upon Regulation against competitor
*Case 43/75 Defrenne v Sabena (No.2) [1976]
• Direct Effect of Regulations • Ms. Defrenne works for Sabena (Belgian airline) which pays male workers more than females for identical tasks • Article 119 EEC: "Each MS shall...ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work" • CJEU: "The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals" • Good example of early case of CJEU taking a more progressive stance than some of the MS
*Case 36/74 Walrave and Koch v Association Union cycliste internationale [1974]
• Direct Effect of Regulations • Professional non-international cycling competition • Prohiibtion in Art.7 on discrimination based on nationality • Walrave and Koch are pacemakers on motorbikes in medium distance cycle races • Found that requirement of pacemakers being the the same nationality as racers was unjust (not an international competition, just a competition)
*Case C-85/96 Martinez Sala [1998]
• EU Citizenship • New category in EU Law before Cit D 2004/38: Economically inactive • Spanish national living in Germany and not working. She has already been authorised to reside there, although she has been refused issue of a residence permit - Was not granted child-raising allowance • CJEU: unjustified and unequal treatment due to grounds of nationality • The rights of residence are directly effective, autonomous and do not depend on possession of any previously existing EU status category/connection to an economic activity. • Conditions and limitations must be relied on proportionately
Case C-158/07 Förster [2008]
• EU Citizenship and FM (services and establishment) • Directive 2004/38, provides in Art. 24(2) that, in the case of persons other than workers, self-employed persons, persons who retain such status and members of their families, the host MS is not obliged to grant maintenance assistance for studies, including vocational training, consisting in student grants or student loans, to students who have not acquired the right of permanent residence • Also providing, in Art. 16(1), that Union citizens will have a right of permanent residence in the territory of a host MS where they have resided legally for a continuous period of five years
Case 316/85 Lebon [1987]
• EU Citizenship and FM (workers) • CJEU ruled that job-seekers were entitled to equal treatment only in access to employment and that they were not entitled to the same social and tax advantages enjoyed by workers under article 45 TFEU
Case C-138/02 Collins [2004]
• EU Citizenship and FM (workers) • Connection / 'real link' between person and host state is required for job seekers to be entitled to benefit facilitating to access to employment (Art.45 TFEU) • 'Real link' = some real connection/certain level of integration with the MS they want to move to
*Case C-34/09 Zambrano [2011]
• EU Citizenship and FM (workers) • Non-EU citizens living in the EU with their (EU citizens) children. Mr Zambrano is refused permit to stay - Belgian law: if you are born there, you are a EU citizen automatically - Non-autonomous EU minors are taken care by third party nationals -No cross border element at all • Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen • CJEU: EU MS cannot refuse right to third party national if refusing residence would deprive the children (minors, non-autonomous, EU citizens who are completely dependent on a third party national at risk of being expelled from the Union completely)
Case C-333/13 Dano [2014] and Case C-67/14 Alimanovic [2015]
• EU Citizenship and FM (workers); more restrictive approach than Förster • Article 24(1) of Directive 2004/38 must be interpreted as not precluding legislation of a MS under which nationals of other MS are excluded from entitlement to certain 'special non-contributory cash benefits', although those benefits are granted to nationals of the host MS who are in the same situation, in so far as those nationals of other MS States do not have a right of residence under Directive 2004/38 in the host MS • First time that the CJEU ruls that the individual was not really self-sufficient and did not work, therefore not in compliance with Art. 7 CitD - right of residence; therefore no equal access to social benefits
*Case C-135/08 Rottmannn v Freistaat Bayern [2010]
• EU Citizenship; Art. 20 TFEU • Austrian national acquires German citizenship. Austrian law provides that Austrian citizenship is incompatible with another one. However, after having lost his Austrian nationality, Mr Rottmann is at risk of becoming stateless as he did not disclose his criminal record, which is a reason for German nationality to be revoked (acquisition by fraud) - Not EU Law but national laws of citizenship • CJEU: admits that EU law can be relevant in that specific case as long as they observe the principle of proportionality
Case C-209/03 Bidar [2005]
• EU Citizenship; Maintenance Grants • The CJEU relied on the introduction of EU citizenship and the changes in educational and vocational training competence under the Treaty to depart from its earlier conclusion and to rule that maintenance grants for students do now fall within the scope of the prohibition of discrimination on grounds of nationality
Case C-265/95 Commission v France (Spanish Strawberries) [1997]
• Economic Integration • CJEU established that France was acting against Free Movement (FM) by disruption of FM by private parties
*Case 2/73 Geddo v Ente nazionale Risi [1973]
• FM (Goods): Quantitative Restrictions • QRs defined as: a measure 'which amounts to a total or partial restraint of...imports, exports or goods inn transit' • QRs = a complete ban
Case 34/79 R v Henn & Darby [1979]
• FM (Goods): Quantitative Restrictions: Public Morality as per Art.36 • QRs determined as being 'the most extreme form of prohibition' • Art. 36 Derogation of Public morality. -Ban on importing pornography products into the UK was a QR but allowed under Article 36 TFEU public morality derogation. The prohibited materials could not lawfully be made or sold in UK, so UK law not "arbitrary discrimination" or "disguised restriction" on trade under Article 36 TFEU • Ban by UK of certain types of pornography; falls within the scope of Art 34 • CJEU agreed that it was acceptable for the UK to restrict the import of pornographic films into the UK because it was up to each MS to set its own standards of 'public morality' and there was no lawful trade in these items in the UK
*Case C-55/94 Gebhard [1995]
• FM (establishment and services); definitions/distinguishing between E+S • Both are self-employed (no subordination element) • Establishment: continuous and stable basis of activity • Service: temporary nature determined by periodicity, continuity, and regularityn
Case 2-74 Reyners v Belgian State [1974]
• FM (establishment): Direct Discrimination • Dutch national holding a legal diploma was prevented from practicing as avocat in Belgium because of his nationality. Mr Reyners relied on direct applicability of the Treaty provision on the freedom of establishment and non discrimination on grounds of nationality. • The rule on equal treatment with nationals is one of the fundamental legal provisions of the Community. Article 52 of the Treaty is a directly applicable provision.
*Case 2-3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfield and Sons [1969]
• FM (goods): Charges having Equivalent Effect (CEEs) • The definitions of CEEs (charges imposed due to the fact that products cross a frontier) applies irrespective of whether charge affect: - All citizens of the Union - Those from the importing state - Only the national from the state responsible for passing the measure • What matters is the final effect
Case C-34-35/95 De Agostini [1997]
• FM (goods); • Sweden banned TV ads directed at children under age 12, and banned misleading commercials for skin care products and detergents • An outright ban, in one of member state, of a type of promotion for a product which is lawfully sold there might have a greater impact on products from other member states • Selling arrangement may discriminate against foreign traders / could be a MEQR / if not affect all traders in the same way (access to market impact foreign trader more) / justify: necessary to satisfy overriding requirements of general public importance / or Article 36 TFEU derogations
*Case 15/79 Groenveld v Produktschap voor Vee en Vlees [1989]
• FM (goods); MEEQRs; Art. 35 • "[Art.35] cocnerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a MS and tis export trade in such a way as to provide a particular advantage for national production or for the domestic markets of the state in question at the expense of the production or of the trade of other MS"
**Cases C-267-68/91 Criminal Proceedings against Keck & Mithouard [1993]
• FM (goods); MEEQRs; Limits to Art.34; Selling arrangements • Keck and Mithouard were prosecuted for reselling goods at a loss, which is contrary to French law. They invoked Art.34 TFEU. • Introduces concept of 'selling arrangements' • Selling arrangements could be static arrangements (opening and closing times, premises selling goods, etc) or dynamic (advertising and sales promotion) • CJEU: when a 'selling arrangement' satisfied conditions of 'applying in the same manner to all trading operators within the national territory', Art.34 TFEU does not apply • This is because such arrangements are not intended to regulate trade between MSs in any way (but is non-discriminatory)
*C-110/05 Commission v Italy (Trailers) [2009]
• FM (goods); MEEQRs; Product use • Introduces category of 'product use' • Italian law prohibited the use of motorcycle and a trailer together (even those designed specifically for that use) •In the case of trailers specially designed for motorcycles, the possibilities for their use other than with motorcycles are very limited • Consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer. Thus, Article 56 of the Highway Code prevents a demand from existing in the market at issue for such trailers and therefore hinders their importation. When there is a national measure that makes the use of a product impossible because of specific restrictions, it is potentially caught by Art.34 TFEU
C-368/95 Familiapress [ 1997]
• FM (goods); Mandatory Requirements (fiscal supervision, public health, the fairness of commercial transactions and defence of the consumer) • German HBV publishes prize puzzles/ competitions in magazines lawfully in Germany, but there is a prohibition on the sale of periodicals containing prize competitions in Austria • Plurality of the press
Case C-219/07 Nationale Raad van Dierenkwekers en Liefhebbers & Andibel v Belgische Staat [2008]
• FM (goods); Market Access; MEEQRs •
Case C-142/05 Åklagaren v Mickelsson & Roos [2009]
• FM (goods); Market Access; MEEQRs • "Any other measure which hinders access of products originating in other MS to the market of a MS is also covered by that concept"
**Case C 120/78 Cassis de Dijon [1979]
• FM (goods); Market Access; MEEQRs • A good lawfully produced and marketed in one MS shall be marketed in ay other MS without further checks or inspection • Product requirement case; indirect discrimination which can hinder trade/protectionist intent • Import of black currant liqueur 'Cassis de Dijon' into Germany from France. • German authorities refuse to allow Cassis (15-20%) made lawfully in France to be sold in Germany due to its insufficient alcoholic strength. • German law requires that such liqueurs have a minimum alcoholic percentage of 25%. • Hidden restriction to trade because most German fruit liqueurs are made stronger
Case 7/61 EEC Commission v Italy [1961]
• FM (goods); Market Access; MEEQRs • Article 36 'is directed to eventualities of a non-economic kind'
**Case 8/74 Procureur du Roi v Dassonville [1974]
• FM (goods); Market Access; MEEQRs • Provides categorical definition of Measures having Equivalent Effect to Quantitative Restrictions (MEEQRs) • A Belgian law provides that Scotch whisky that had a designation of origin could only be sold if accompanied with a certificate of origin from the authorities of the exporting country • Dassonville imported whisky from France into Belgium; • Cant obtain such a certificate of origin from France. France did not require a certificate of origin. • Forges certificate to satisfy Belgian law and Prosecuted. • Dassonville argues that the Belgian law = a measure equivalent to a quantitative restriction (MEEQR.) • Definition of MEEQR: 'All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.
Case C-237/94 O'Flynn v Adjudication Officer [1996]
• FM (workers): Indirect Discrimination • Requirement of residence leads to indirect discrimination • The equal treatment rule prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result. Unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is sufficient that it is liable to have such an effect. • The reasons why a migrant worker chooses to make use of his freedom of movement within the Community are not to be taken into account in assessing whether a national provision is discriminatory.
Case C-415/93 Union Royal Belge des Sociétés de Football Association v Bosman [1995]
• FM (workers): Restriction • Rules providing that a professional footballer may not pursue his activity with a new club established in another Member State unless it has paid his former club a transfer fee agreed upon between the two clubs or determined in accordance with the regulations of the sporting associations. • The treaty precludes measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. Provisions which preclude or deter a national of a MS from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned.
Case 175/78 Saunders [1979]
• FM (workers); Internal situation • The application by an authority or court of a Member State to a worker who is a national of that same State of measures which deprive or restrict the freedom of movement of that worker within the territory of that State as a penal measure provided for by national law by reason of acts committed within the territory of that State is a wholly domestic situation which falls outside the scope of the rules contained in the Treaty on freedom of movement for workers • CJEU: There must be a cross-border element for it to fall into the scope of FM (workers)
Case C-292/89 Antonissen [1989]
• FM (workers); Job-seeker • Job-seeker has the right to move to another MS to look for work • A Belgian national arrived to the UK. He tried to find employment in vain, and was then imprisoned for drug-related offences. The Secretary of State issued a deportation order, and argued before the ECJ that only EU nationals with confirmation of employment have the right to reside in another member state • CJEU: 6 months is reasonable to find employment corresponding to their occupational qualifications • This was before the Citizenship Directive 2004/38
Case C-138/02 Collins [2004]
• FM (workers); Job-seeker's rights • Job-seekers are entitled to equal access of employment as per Art.45 TFEU • But i nt is legitimate for the national legislature to wish to ensure that there is a genuine link between an applicant for an allowance in the nature of a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 and the geographic employment market in question
*Case C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000]
• FM (workers); Scope of application of Art.45 TFEU • Capable of horizontal direct effect (between private parties) • A bank based in Bolzano (Italy) required a certificate of bilingualism (Italian and German) to applicants who wanted to apply for a post. The certificate had to be issued by the public authorities in Bolzano following an exam held only in that province • Held: indirect discrimination under Art.45 because the requirement to get a certificate in Bolzano puts other MS at a disadvantage
Case 53/81 Levin [1982]
• FM (workers); definition of part time workers • Part-time workers are considered workers as long as their work is "effective and genuine"
Case 75/63 Hoekstra [1964]
• FM (workers); definition of worker • CJEU: definition of 'worker' was not dependent on any national classification of workers and self-employed people, but was an autonomous concept of EU Law
Case C-188/00 Kurz [2002]
• FM (workers); definition of worker • Worker: person pursuing "an activity which is genuine and effective, to the exclusion of activities [that are] purely marginal and ancillary"
Case 139/85 Kempf [1986]
• FM (workers); relevance of minimum wage • Source of supplementary means of subsistence (any lawful means, even public funds) is irrelevant so long as the work is "effective and genuine"
*NS [2011] and Caldararu [2016]
• Freedom of Security and Justice; asylum law; automatic transfer • CJEU: that the presumption of 'mutual trust' (presumption that other MS must comply with fundamental rights) is not absolute, and a state must be able to challenge that in exceptional circumstances • Absolute mutual trust is incompatibleble with EU law + State must be able to challenge
*Case C-106/89 Marleasing [1990]
• Indirect Effect/Duty of Consistent Interpretation • 'Highwater mark' of indirect effect • Claimant company seeks declaration that contracts setting up defendant companies are void: "lack of cause" (sham company) • Spanish law recognizes "lack of cause" as a ground for nullity • Art. 11 exhaustive list does not contain "lack of cause" • Directive not properly implemented by Spain • The interpretative obligation applies horizontally, and it applies even where national legislation predates the directive
*Case 14/83 Von Colson & Kamann [1984]
• Indirect Effect/Duty of Consistent Interpretation • Von Colson applies for a job in a prison as is rejected because she was a woman • German court finds this discriminatory based on unequal treatment but the German law provides compensation only for travel expenses • Von Colson claims that this does not meet Art. 6 Equal Treaty Directive Requirements and demands that the court appoint her • Because the remedy of appointment is not specifically precise in the directive it is not directly effective; specific implement or damages • Imposed an obligation on national courts...to interpret domestic law in light of the wording and purpose of an EU Directive
Case 112/84 Humblot v Directeur des Services Fiscaux [1985]
• Indirect discrimination: where tax rules do not differentiate between domestic/imported products re:tax levied but still, in effect, place a greater burden on products from another MS
Case C-300/89 Commission v Council (Titanium Dioxide)
• Lack of Competence • Directive aimed at reduction and elimination of pollution caused by waste from the titanium dioxide industry • Also aims at improving competition in Titanium Dioxide Industry • Both environmental and economic aims • EU has competence in both fields
*Case 6/64 Costa v ENEL [1964]
• Primacy/Supremacy of EU Law • (Re)Nationalization of Italian Energy Provider • Renationalization is incompatible with EU law; Italian legislation (which allows for it) is passed after Italy joins EEC • In most legal systems, as a matter of basic interpretation/constitutional principle, legislation enacted later in time prevails in the event of a conflict (implied repeal; like a software update) • New legal order that benefits not just states but individuals
*Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978]
• Primacy/Supremacy of EU Law • Company imports beef from France into Italy • Charged for veterinary inspection at Italian border (quality and health of beef) • Conflict between EU free movement of goods and Italian law passed after Italy joined EEC • Italian rule provides for these vet type checks • Trader believes that the fee paid should be reimbursed because it is governed by EU law • All national courts have an obligation to ensure that the supremacy of EU law is given practical effect, irrespective of subsequentnational procedural rules
*Case 11/70 Internationale Handelsgesellschaft [1970]
• Primacy/Supremacy of EU Law • Conflict between EU Regulation and provisions of the German Constitution • All national rules which conflict with EU law-irrespective of their legal status at domestic level-must be disapplied
*Case 213/89 R v Secretary State for Transport ex parte Factortame [1990]
• Primacy/Supremacy of EU Law • New Merchant Shipping Act 1988 provided for registration of vessels as 'British' only if: Vessel is British owned; Managed from the UK and operated by a 'qualified person or company' • Violation of Art. 49(2) TFEU: Right of establishment; nationality requirements are discriminatory and thus contrary to EU law • Unprecedented step: issue injunction disapplying Act of Parliament
Case 55/79 Commission v Ireland [1980]
• Re. Art.110 • Direct discrimination relates not just to the amount of tax but also to e.g. conditions re: its collection
Case 22/70 Commission v Council (ERTA) [1971]
• Re: European Road Transport Agreement which the Commission disapproved of the negotiating mechanism • Explicit competences/Implied Competences • Held: The Council's proceedings were squarely within the power of the Community: the proceedings established were designed to lay down a course of action binding on both institutions and MS and had definite legal effects.
Case C-210/03 R (Swedish Match AB and anor) v Secretary of State for Health [2004]
• Re: Reasons • Clarifies Art.296 TFEU • The adopting institution "is not required to go into every relevant point of fact and law"
Case C-487/06P British Aggregates Association v Commission [2008]
• Re: Reasons • Reaffirms Art.296 TFEU • "...must disclose in a clear and unequivocal fashion the reasoning followed bu the institution which adopted the measure in question...to enable the competent [Union] Court to exercise its power of review"
Case C 351/98 Spain v Commission [2002]
• Reasons whereby all Union acts are required to state the reasoning upon which they are based • Reaffirms Art.296 TFEU • "The Treaty must explain clearly and unambiguously the reasoning followed by the [Union] institution which has adopted the...act"
*C-72/14 and C-197/14 X and Van Dijk [2015]
• Refusal of Dutch authorities to recognize certain social security certificates provided in another MS • First preliminary ruling submitted by a Dutch non-final instance court = how should EU law be interpreted here? (makes reference because unclear on how EU law should be interpreted) • Dutch Supreme Court has a similar case before it on exactly the same legal issue. It believes EU law is very clear here (and thus CILFIT applies) • Reference to CJEU = Does the fact that a question was referred to a preliminary ruling by a lower national court preclude (prevent) the highest national court from taking the view that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt on how that question must be answered?
*Case T-18/10 Inuit Tapiriit Kanatami
• Review of Regulatory Acts •"The meaning of 'regulatory act' for the purposes of the 4th paragraph of Art.263 TFEU must be understood as covering all acts of general application apart from legislative acts."
*Cases C-6&9/90 Francovich v Italy [1991]
• State Liability in EU Law • Company goes bankrupt, employees not paid wages • EU insolvency directive obliges MS to establish a fund to pay employees wages in event of insolvency • Landmark case for establishing State Liability provided that 3 conditions are fulfilled 1)The Directive confers rights upon individuals 2) The content of those rights could be identified on the basis of the provisions of the directive 3) There was a causal link between the state failure and the damages suffered by the persons affected
*Cases C-46 & 48/93 Brasserie du Pecheur v Germany [1996]
• State Liability in EU Law • Refined 3 conditions established in Francovich 1) ROL infringed must be intended to confer rights on individuals 2) The breach must be sufficiently serious 3)And there must be a direct causal link between the breach of the obligation resting on the state and the damages sustained by the injured parties
Case C-133/06 Parliament v Council [2008]
• Subordinate Legislation • Clarifies art.290(1) TFEU • Conferral of subordinate authority by enabling legislation is now 'an established legislative technique' and 'established practice of the Union legislature'
*Case 152/84 Marshall v Southampton & SW Hampshire Area Health Authority [1986]
• Vertical v Horizontal Direct Effect of Directives • Marshall dismissed from health authority after 14 years of service • Policy is women retire at 60, men at 65 • UK has not transposed the directive into national law-they failed • Decisions can rely on unimplemented directives in vertical relations with the state (German state with tax exemptions) • Claims it violates EU equality Directive health authority being a Quango/NHS • Rule: cannot rely on horizontal capacity between individuals; only state and individual
*Case C-91/92 Faccini Dori v Recreb [1994]
• Vertical v Horizontal Direct Effect of Directives • Miss Faccini Dori concludes contract at Milan Railway Station for an English language course • Miss Dori cancels her order • Claims a right of cancellation within 7 days under Directive 85/577/EEC • Directive aims at consumer protection by providing for "cooling off" period to reject purchases • Italy had not taken steps to transpose the Directive into national law • No Italian rule or law providing for 7 day cooling off period • Held: No horizontal direct effect of Directives because the transaction concerned business (private party) to consumer • Affirming Marshall, cannot rely on provisions of unimplemented Directive against individual/business
Case 138/79 Roquettes Frères v Council [1980]
•Substance/Grounds for Review: Establishing Illegality • Infringement of an essential procedural requirement From judgement: - "Parliament to play an actual part in the legislative process of the Community" - " It reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly...the measure concerned is void
