EU Law

Denmark v Commission (Food Additives) (2003)

(Art 114). There is a fallback mechanism in Art 114 that permits, subject to certain conditions, national rules to be maintained/introduced after the adoption of a harmonisation measure, on the basis of major needs referred to in the derogation from free movement of goods (in Art 36 TFEU), or relating to the protection of the environment, or the working environment. In this case, Denmark were able to maintain higher standards regarding food additives without breaching free movement of goods.

R v Thompson (1978)

(Article 36 justifications - public policy). A restriction on the export of collector's coins was justified because of the need to protect mint coinage.

Macarthys v Smith (1979)

(The effect of the EU Treaty on the application of UK law in the Courts). If UK legislation is deficient or is inconsistent with EU law, then the UK are bound to give priority to EU law.

UK v Council and Parliament (Smoked Flavourings) (2005)

(Competence of the Union to establish new regulatory institutions on the basis that such bodies improve the functioning of the internal market through the assessment of risks and promoting best practice). This case concerned a technical reference in a Directive to 'chemically' flavoured crisps which essentially outlawed such crips, due to the level of additives in the products. The EU wanted to set a maximum level in order to protect public health. The UK sought to challenge this proposal, arguing it violated the Food Additive Regulation which was based on Art 114. The power was delegate to the Commission to regulate food additives based on public health rules (and taking into account advice from the Europe Food Safety Authority, made up of experts). UK argued this gave too much power to the agency. The Regulation didn't permit agents to determine rules and their action amounted to harmonisation by the agency. HELD - the CJEU emphasised that Art 114 leaves considerable discretion as to the technique of harmonisation. It is a matter for the EU institutions (providing it achieves a desire result - here to protect public health within the internal market). Where discretion is exercise in a complex technical area like it was here, it was lawful to have such mechanisms designed in such a way to lead to harmonisation, as achieved through a lawful harmonisation procedure based on authorised powers where the Commission makes the final decisions. i.e. it was lawful for experts to determine, based on scientific evidence, which additives should be permitted, but the final decision was left to the Commission. Ultimately, their duty was to make decisions based on full and reliable evidence.

Van Duyn (1974)

(Criteria for establishing whether a provision of EU law has direct effect). FACTS? In order for a provision of EU law to have direct effect, it must: - be clear and precise - be unconditional/without exceptions - not require any implementation by the MSs

Van Gend (1963)

(Direct effect of EU law in national courts). EU law has the capacity to be relied upon directly by individuals in the national court. Direct effect is the justiciability of EU laws that cover rights on individuals, which national courts have a duty to protect. (Art 30 TFEU - the imposition of an increased custom duty upon goods being imported into the Netherlands). This case established that there can be no exception to the rule that there can be no taxes at borders between MSs. The goods in question were reclassified by the Dutch government so they become subject to a higher rate of duty. The importers attempted to use Art 30 to challenge the new duty in national courts. HELD - the CJEU ruled that as the new duty imposed a higher rate of import duty on the importer, it was a direct contravention of what is now Art 30 , and that this Art provided a right which could be enforced by individual EU citizens. The CJEU said that the applicant could enforce their argument against the Dutch government if the following criteria were fulfilled: - if the prohibition was clear and unconditional - if the prohibition imposed a duty without any discretion given to the MSs - if the prohibition produced direct effects between MSs and citizens (for the criteria for direct effect, see Van Duyn).

Marshall I (1986)

(Direct effect). Directives are NOT capable of horizontal direct effect. They are only vertically directly effective.

Defrenne (1976)

(Direct effect). Here, a female air steward claimed equal pay with a male cabin crew member. Could she rely on Art (ex) 119 EEC in the national court? Was it directly effect? 1. Clear and precise - yes. The world 'principle' indicated the fundamental nature of the right to pay. It could not be reduced to the level of a vague declaration. 2. Unconditional - yes. MSs are bound to ensure and maintain the principle of equal pay. 3. No further action - Yes. The wording of it imposed on States a duty to bring about specific result to be mandatorily achieved within a fixed period. Ex-Art 119 EEC was directly effective even though sone MSs had not discharged their duty. This case also established that regulations are capable of both vertical and horizontal direct effect.

Becker (1982)

(Direct effect). Where the provisions of a directive appear to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive of in so far as the provisions fine rights which individuals are able to assert against the state. This also makes it clear the directives are vertically directly effective.

Sociaal Fond voor de Diamondarbeiders (1969)

(Free movement of goods - Art 30 is absolute). Even where there is no domestic product that might get an advantage from such a customs duty, customs duties are still prohibited. In this case, there was a charge imposed on diamond imports into Belgium. The purpose of the charge was to provide a social fund for people working in Belgium in the diamon industry. It was challenged on the grounds that it was a customs duty. Belgium argued that the prohibition of customs duties was intended to remove protectionism - and that because there was no domestic market for the production of diamonds, as well as the benevolent purpose of the charge, this should not be considered a breach of Art 30. HELD - the CJEU held that the effect of the charge, however small, charged at a border, would be an obstacle to the free movement of goods, regardless of the motivation for imposing it. This was therefore a breach of Art 30.

Conegate (1989)

(Free movement of goods - Article 36 justifications - public morality). A prohibition was not justified here because such products were not prohibited in the UK, and therefore a justification based on public morality failed.

R v Henn and Darby (1979)

(Free movement of goods - Article 36 justifications - public morality). This case concerned a justified prohibition on pornography due to illegality in the UK.

Lawrie-Blum (1986)

(Free movement of workers - broad EU definition of employment relationship). "For a certain period of time a person performs services for and under a direction of another person for which he receives remuneration".

Campus Oil (1984)

(Free movement of goods - Article 36 justifications - public security). A requirement for importers of petroleum to buy 35% of their products from the nationalised refinery at a set price by the Irish government was found to be a a MEE. Ireland argued the measure was necessary for public security because if they did not make this requirement the they would not be able to run the oil refinery as a matter of economics. The court took the view that because petroleum products are of exceptional importance as an energy source in the modern economy, and therefore of fundamental importance to a country's existence because its public services may be threatened if it does not have a reliable oil supply. The danger of potentially losing this meant that there were justifications to save it on public security grounds.

Commission v Belgium (1983)

(Free movement of goods - Charges applied to imports which are not a breach of Article 30). The Belgian authorities placed a charge on goods being brought into the country at the point they passed through the customs inspection system. There were two aspects to this charge. One was a compulsory charge for storage which was for the period that goods were kept by the Belgian authorities for inspection; however, there was a second charge, which was optional. If the importers wishes to keep their goods at the inspection warehouse for an additional period of time after the inspection took place before collecting them, they could do so, but they would be charged a storage fee. HELD - the first charge was considered a charge equivalent to a customs duty because it was compulsory and applied to everyone. However, the second charge was not, because it was optional, and was in return for a genuine service i.e. the storage of goods until the importer collected them.

Commission v France (tax on spirits) (1980)

(Free movement of goods - Competing goods under Article 110(2)). The Court had to decide whether grain-based alcoholic products (such as whisky, rum, gin etc.) competed with wine or fruit-based products (such as cognac, armagnac, wine etc.). France produced far more of the fruit-based products, but the tax was higher on the grain-based products. HELD - despite not being 'similar' (as in the tax on bananas case), they did compete with each other because they may be considered alternative choices for people as alcoholic beverages.

Commission v UK (wine and beer) (1983)

(Free movement of goods - Competing goods under Article 110(2)). The Court in this case looked at the effect of the taxation difference between wines and beers. Just like the Commission v France case (tax on spirits), these were considered to be competing products despite their differences. However, in the UK, more beers were produced than wines, and the tax was higher on the wines. HELD - the effect of the difference in taxation of these competing products, as a result of the fact that the product with the lower tax was predominately produced domestically, and the product with the higher tax was predominantly imports, was discriminatory towards imports.

Commission v Italy (1969)

(Free movement of goods - Definition of charges equivalent to customs duties). The Italian government placed a levy on statistical information because it constituted consideration for a business service. HELD - the CJEU defined charges equivalent to customs duties as: "any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic and foreign goods by reason of the fact that they cross a frontier"

Humblot (1985)

(Free movement of goods - Indirect discrimination under Article 11o). This case involved a taxation system imposed upon cars based on a number of factors regarding the car's engine and the size of different aspects of it. However, it just so happened that where a French-produced car fell into the lower tax band, the equivalent imported car fell into the higher tax band. This was still discriminatory, regardless of any intention or deliberate act of the French Government in imposing this tax. The effect of the French measure cancelled out any advantages which imported cars might have in consumers' eyes over cars of domestic manufacturer with lower yearly car tax. It was therefore contrary to the principle of non-discrimination.

Cassis de Dijon (1978)

(Free movement of goods - Indistinctly applicable measures and their validity under Article 34). The CJEU clarified what was implied in Dassonville (and yet failed to be distinguished) that Art 34 can apply to national rules that make no distinction between domestically proceed and imported goods (i.e. indistinctly applicable rules). CJEU established a rule of reason to justify the application of art 34 to such indistinctly applicable rules: MSs should be limited by reasonableness in their application of national rules - such rules should be designed so as not to hinder trade in practice, taking into account other objectives which might be suitable justifications either in Art 36 or other justifications which they may seek to rely on. (Basically, the effect of the MS' legislation on the free movement of goods must be proportionate in relation to the legislation's stated goals). It would be possible to go beyond Art 36 justifications re. indistinctly applicable measures, as long as the reasoning is legitimate, necessary and proportionate. In this case, the indistinctly applicable measure was attempted to be justified on the basis of the protection of public health, but this was rejected as being disproportionate because labelling the bottles would have protected the consumer's health and thus the measure was not necessary for consumer health. (Mutual recognition). This case involved liquor with a low-level alcohol content produced in France. Germany set new legislation for the minimum level of alcohol for a product to be sold as an alcoholic drink. The French product fell below this level and therefore could not be sold in the same way in Germany as it was in France. HELD - despite the fact that Art 34 is a negative rule, it involves a positive obligation on each MS to recognise the lawfully produced and marketed products of other MSs. There was no valid reason why goods should not be introduced into any other MSs. Principle of mutual recognition.

Keck (1993)

(Free movement of goods - Indistinctly applicable measures under Art 34). A French law prohibited the resale of goods that had not been altered or repackaged at a price lower than the price at which they had been bought, in order to prevent so-called 'predatory pricing' (the process of making a short-term loss in order to force competition out of the market). The measure was challenged as being contrary to Art 34, and the CJEU modified its approach to indistinctly applicable measures on the grounds that traders had increasingly used these laws to challenge limits to their commercial freedom. HELD - where a measure was indistinctly applicable, if that measure constituted a "selling arrangement", it would not breach Art 34 as long as the following two conditions were satisfied: 1. The provision must apply to all affected traders within the same territory (straightforward discrimination test) AND 2. The provision must affect the traders in the same manner, both in law and in fact, of both domestic and imported products.

Commission v Germany (beer purity) (1987)

(Free movement of goods - Mutual recognition). Beer from other EU States that did not comply with the German beer purity law could be imported and could be called beer because it was lawfully sold in other EU States. There must be an available choice for consumers as to which beer within the market they shall purchase.

Cinéthèque (1985)

(Free movement of goods - ORPIs - protection of national culture).

Commission v Denmark (recycled bottles) (1988)

(Free movement of goods - ORPIs). Denmark introduced a ban on all bottled products that were not made from recyclable material. This wasn't treated as a QR because not all products were banned, only those not of recyclable glass. There was a requirement of manufacturers to change the glass of the product in order to sell the product, and it was therefore a MEE (there was a restriction on the TYPE of glass). Denmark also said the glass had to be at the standard set by the Danish Recycling Agency (which has a higher standard than that deemed by other agencies in other MSs). HELD - ORPIs can include protection of the environment, but the measure was found to be disproportionate because by setting a higher standard it went beyond what was necessary to achieve the objective of saving the environment.

Schwarz (2005)

(Free movement of goods - Selling arrangements vs. product requirements). Austrian requirement to individually package chewing gum dispensed by a vending machine made the product's importation into Austria more expensive. The CJEU ruled that this was QR and was therefore caught by Art 34.

Mars (1995)

(Free movement of goods - Selling arrangements vs. product requirements). Prohibition on certain advertising claims on packaging were found to be a product requirement, not a selling arrangement. This violated rules of unfair competition because it was lead to consumers being misled in some way. The courts then applied the Keck rules. The restriction on the packaging of the product was clearly a product requirement, BUT the restriction on advertising was a selling arrangement. The wrapping was integral to the product. Rules that lay down requirements to be et by goods, such as those relating to their presentation, are prohibited by Art 34.

Mickelsson and Roos (jet skis) (2009)

(Free movement of goods - Selling arrangements). (Free movement of goods - ORPIs - transport safety).

Punto Casa (1994)

(Free movement of goods - Selling arrangements). A restriction on Sunday trading was held to be a selling arrangement, not a product requirement.

Leclerc-Siplec (1995)

(Free movement of goods - Selling arrangements). Prohibition on television advertising for certain products was found to be a selling arrangement, not a product requirement.

Alfa Vita (2006)

(Free movement of goods - Selling arrangements). This case concerned a requirement to have a licence to sell 'bake-off' bread. The CJEU found that the licensing arrangement was was discriminatory and therefore the rule in question could not be considered a selling arrangement. It breached Art 34.

Commission v Italy (motorcycle trailers) (2009)

(Free movement of goods - Selling arrangements). This indistinctly applicable measure was justified on the basis of an ORPI: transport safety. (Free movement of goods - indistinctly applicable rules). Italy introduced restriction on trailers permitted to be used on motorcycles. Trailer could be imported and be used on cars but not motorcycles. The rule didn't apply to a type of trailer, simply the use of a trailer. The debate was whether a use/restriction of use was analogous to a selling arrangement. It was also argued that there was no dual burden, and the distinction was that product requirements imposed dual burdens. The CJEU held that a use/restriction was not the same as a selling arrangement, even though this seems to be a classic selling arrangement. They therefore had to look at the rule and question if it has an impact on consumer activity in the market. It did, because you would be less likely to buy a trailer if you owned a motorcycle. Instead of applying Keck, the court decided that the measure was an MEE. The state then justified it by arguing that the measure was legitimate in wanting to protect road safety. (Free movement of goods - ORPIs - transport safety).

Commission v Italy (tax on bananas) (1987)

(Free movement of goods - The 'similarity' of products). The CJEU had to decide whether a generic categorisation of 'fruit' made all fruit similar. It was decided that the objective characteristics of bananas meant they were not similar to other fruit for the purpose of Article 110. The Court accepted that there was differences in different types of fruit that made them dissimilar enough not to be covered by Article 110(1).

Commission v Italy (Art Treasures) (1968)

(Free movement of goods - The meaning of 'goods'). Good are interpreted as 'products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. (Article 30 TFEU - the purpose of the customs duty charge is irrelevant). The motive of a MS in creating a customs duty charge is irrelevant; what matters is what the effect of such a charge is on imports and exports. This case concerned customs duties imposed by the Italian State upon certain cultural treasures and artefacts which, after having been sold to private collectors from outside Italy, were being shipped out of the country. The Italian authorities attempted to justify this by claiming that the charges were there in order to discourage people from takin such treasures out of Italy in order to preserve their cultural heritage. HELD - the CJEU ruled that the purpose of the export tax was irrelevant. The mere fact that the tax was prohibited by Art 30 was enough for Italy to be considered to be breaching EU law. (Article 36 justifications - protection of national treasures possessing artistic, historical or archeological value).

Bluhme (1998)

(Free movement of goods - broad view of 'goods' under Arts 34-35 - Article 36 justifications: life of animals). Under Danish law, only a specific brown bee could be kept on a Danish island. It was a protected species under Danish regulations, and because the bee was protected, it had to be prevented from mating with other non-indigenous bees. B was a bee keeper who sought to challenge the measure, arguing it was a restriction on his right to use any bees he wished to make money. Could the restriction on species of bee amount to a violation of Art 34? Yes - bees produce honey which has monetary value and is traded between MSs. Effectively, bees are goods. The fact that the area concerned was a remote island off a MS didn't mean that there was no connection with Art 34. It effectively linked to exports because the potential to export different honeys was restricted. Could be argued under Dassonville formula that a restriction on trade occurred. BUT the measure was saved under Art 36. The MS used the justification that the measure was necessary for the protection of health and life of animals. This measure was found to be proportionate because the species needed to be protected and this was recognised under international law.

Commission v Ireland (Irish souvenirs) (1982)

(Free movement of goods - distinctly applicable measures - marks of origin). Irish law prohibited the sale of imported Irish souvenirs which weren't genuine but were sold as if they were. They weren't totally banned but they were subject to an origin mark notifying them as foreign. This was found to be a distinctly applicable measure - it was discriminatory against imported goods and could not be justified under Art 36. (Free movement of goods - Article 36 justifications). The list in Article 36 is exhaustive. Ireland sought to justify the measure as protecting consumers who wished to buy a genuine souvenir. This is not listed in Art 36.

Commission v Ireland (Buy Irish) (1982)

(Free movement of goods - distinctly applicable measures - promoting domestic products). Here it was held that a domestic product being promoted to the disadvantage of an imported product and was therefore a distinctly applicable measure. The state tried to argue that it was justified based on consumer protection, but because it was a distinctly applicable MEE, it could not use the jstification of consumer protection because this is not included in Art 36 (if it was an indistinctly applicable measure, it could be justified using ORPIs, including consumer protection). (A measure within the scope of Art 34-35 must be a state measure). A body set up by the Irish government to make Irish products had members appointed by the State, as well as state funding to promote produce. It was effectively a distortion on the market because state money was used and a state appointed body to advertise the campaign to advantage domestic products.

DocMorris (2003)

(Free movement of goods - justification of a restriction). This indistinctly applicable measure was justified on the basis of an ORPI: protecting the financial balance of the social security system. This case concerned a German prohibition on internet/mail order pharmacies, but it had a greater impact on pharmacies not established in Germany and so it was caught by Art 34. (Free movement of goods - selling arrangements). Whilst it did not satisfy the two conditions in Keck, it was decided that internet sales are a selling arrangement. This is because the German prohibition had a greater impact on pharmacies not established in Germany. It therefore didn't affect domestic traders in the same way in law and in fact and so fell within Art 34 (disproportionate impact on importers). (Free movement of goods - ORPIs - protecting the financial balance of the social security system). (Free movement of goods - "new approach" harmonisation). This concerned a new approach to a harmonisation regulation which set the minimum requirements of pharmaceuticals. The MS took additional measures going beyond this. The court had to balance the Regulation with Art 34 because the Regulation was not a total harmonisation measure (as it was a Regulation and not a Directive and so it was still possible to apply Art 34 and so the measure by a MS could be found to be a violation of EU law. Partial harmonisation is preferred because the MS might be able to introduce their own measures to reach the objectives of the EU without impinging on the free movement of goods.

Forster

(Free movement of goods) CHECK CASE. This case concerned a 5-year residence requirement for entitlement to student grant in the Netherlands, and it was claimed that this was discriminatory. F had previously worked but was found not to have retained her worker status. Instead, by applying to be a student, she was found to be an economically inactive EUC. 5-year rule was found to be non-discriminatory, as it also applied to nationals, was based on clear criteria and was known in advance, and was therefore proportionate. As F was no longer a worker, the CJEU took account of Art 24(2) CRD even though it had not yet taken effect at the time the case was brought. The length of residence under the rule coincided with the period of residence requirement for non-economically active EUCs to acquire PR under Art 16(1) CRD.

Ioannidis (2005)

(Free movement of persons - "real link" test for applying for job seekers' allowance). The real link test must be applied subject to the principle of proportionality.

Baumbast (2002)

(Free movement of persons - Art 21 TFEU is directly effective). Art 21 creates a directly effective right of free movement and residence in the EU for all EUCs derived from their nationality of a MS. This means that an individual can rely upon the right to free movement and residence in all the national courts of the host MS, or indeed the home MS. (Free movement of persons - a "burden" on the social assistance scheme is interpreted narrowly). B was a German national living with his family in the UK but working overseas. He did not receive any UK social benefits and travelled to Germany, when necessary, for medical treatment covered by insurance policy. He could rely on Art 21 because he was not working directly in the UK but was an EU citizen with a right of residence there. Was he a burden on the UK because his health insurance policy did not cover emergency treatment (and instead only regular health care that could be received in Germany)? The refusal of rights of residence because of a lack emergency cover was disproportionate with B's EUC rights of citizenship. The CJEU said it was a fundamental right to exercise EU citizenship. B did not burden the social assistance scheme, and refusal of the right of residence because of lack of cover only for accident and emergency treatment in the UK would amount to a disproportionate interference with B's rights.

Eind (2007)

(Free movement of persons - Art 21 includes home MS restrictions on TCN FMs of its returning nationals). Concerned a daughter coming from outside of the EU. The fact that the FM had never previously lived in the EU until they joined the citizen in the host MS did not allow the home MS to refuse them entry. Here, EU law overrode national immigration law.

Bidar (2005)

(Free movement of persons - Art 24(2)). B, a French national, came to the UK and lived with his grandmother. B applied for a student loan to go to LSE, but was refused on the grounds that he was not 'settled' in the UK. HELD - student loan for EUC students did fall within the material scope of the Treaties and Art 18 did apply, BUT because of Art 24(2) CRD, the student was not entitled. The rule was found to have a significant impact on nationals of other MSs, but because it was non-discriminatory, it could be justified by an ORPI if it was proportionate. MS may not make the loan conditional on a link with the employment market, as it is for students and not work seekers. BUT may make it conditional on evidence in the host MS for a certain length of time - here it was three years' residence and this was proportional. But an additional requirement of being 'settled' was not permitted because it is impossible for a student to satisfy it, and thus such a requirement would be disproportionate to the UK's legitimate social aims. On the facts, the rule was found to be too strict and disproportionate.

Zhu and Chen (2004)

(Free movement of persons - EU citizenship). This concerned a situation where there were two third-country nationals (Chinese) who were given work permits to allow them to work in the UK. When these work permits came up for renewal, they were not renewed. In the meantime, Mrs C had become pregnant. She travelled from England to N. Ireland to give birth there. When the baby was born, she registered it as an Irish national - because Ireland grants the right of anyone born in N. Ireland to be registered as a national of the Irish Republic. Thus it meant that the baby automatically acquired residency in a host MS and therefore his rights would automatically be soured from Art 20. Could the UK deport Mrs C with her baby? It was argued that in order for the EU citizen to enjoy its citizenship rights, it needed to be with its mother, otherwise it was deprived of those rights. (Free movement of persons - parallel rights for family members). C was financially independent from public funds and had comprehensive sickness insurance for herself and her child. The child met the conditions and was entitled through her mother to rely on Art 21(1) TFEU and enforce a right of residence in the UK. The child's right of residence would have been deprived of any useful effect without her mothers, and so the mother was also entitled to residence as her family member.

Avello (2003)

(Free movement of persons - EU citizenship). Union citizenship is 'additional' to national citizenship. MS have autonomy over the granting of nationality under Art 20(1) TFEU and the principle of mutual recognition applies. In this case, an issue of dual nationality arose where a child had never left their home MS (because EU citizenship is extended to all nationals from the point of birth). The child had a Spanish father and a Belgian mother and the child had the nationality of both and was given a double barrelled surname of both their surnames. However, under Belgian law, you can only register a child under the father's name. The question arose as to whether this was a violation of the Treaty. Even though the child had never left the home MS, the rule itself was found to be discriminatory against people who had dual nationality, and was therefore a violation of the principles of EU citizenship - it was contrary to the child's status as an EU citizen. This case also emphasised a fundamental right to one's own identity.

Micheletti (1993)

(Free movement of persons - EU citizenship). Union citizenship is 'additional' to national citizenship. MS have autonomy over the granting of nationality under Art 20(1) TFEU and the principle of mutual recognition applies. This case concerned a dual Argentinean/Italian national who spent most of his life in Argentina, but his grandparents were Italian. Under Italian law, you can be granted nationality of Italy if you have grandparents who are Italian. M went directly from Argentina to Spain, but Spain refused to recognise him as an EU national because under Spanish civil law, where there is someone with dual nationality, they will only be recognised by the nationality where they are habitually resident (i.e. they would only recognise him as Argentinean and not Italian). It was held that the recognition of nationality status by a MS cannot be questioned by another MS if that nationality was acquired under the lawful regime of that MS (under the duties of loyalty/solidarity/duty of co-operation/mutual recognition).

De Cuyper (2006)

(Free movement of persons - a restriction by a home MS on its own nationals' right of exit). There was a rule in Belgium that said you have to be living and looking for work in Belgium in order to receive unemployment benefits. However, DC lived on the border between France/Belgium and so went to look for work in France. Belgium subsequently cancelled his benefits. DC argued that the rule was a restriction on his right to free movement because he wasn't allowed to look for work in France and still receive his benefit, and so it fell inside the scope of the Treaty. HELD - the court agreed that it was within the personal and material scope of EU law, but they found that it was non-discriminatory rule (would have applied whether or not he had been a Belgian national). The rule could be justified by the MS by relying on an ORPI (monitoring compliance and entitlement to benefit linked with work) and was therefore a legitimate public interest relating to state public interest funds/social security.

Teixara (2010)

(Free movement of persons - children of EUC). The CJEU emphasised that the provision in Art 12 of Regulation 1612/68 (that children in education can finish their studies if their EUC family members departs or dies) emphasises the particular importance which the CRD awards to the position of children and the education a MS can provide for them. EUCs have a responsibility for their children with the MS.

Ibrahim (2010)

(Free movement of persons - children of EUC). This reinforced the position of workers and their children. Protection for children applies even in the case of divorce. Where children belong to a worker who is deemed to be a resident of the MS, the position is the same as if the worker had permanent residence.

Diatta (1985)

(Free movement of persons - family members). Once a marriage is recognised by one MS, other MSs have to accept that marriage as genuine, based on the principle of mutual recognition. In this case, D married a French man who lived in Berlin (she was from outside the EU). The parties separated but remained married. Germany refused to renew her permit as she didn't live with her husband. HELD - she was entitled to residence by virtue of being married to a citizen of the EU. The marriage was recognised by France and so had to be recognised by Germany. The situation may have been different had they been divorced.

Bickel and Franz (1996)

(Free movement of persons - fundamental rights). An Austrian lorry driver was prosecuted in Italy for driving whilst drunk and being in unlawful possession of a knife. The court proceedings were exclusively in Italian even though they were in a German speaking area of the country. Residents of the region close to the Austrian border had a choice to have proceedings in Italian OR German, but this didn't apply to those who weren't residents. B was not a resident but was still able to evoke his right of EU citizenship (as there was a cross-border element and B has right to equal treatment). Otherwise, the right to non-discrimination would have been violated AND the right to understand charges against you on the same basis as nationals of a MS was also a fundamental right being violated.

Raccannelli (2008)

(Free movement of workers - definition of worker and guidance to the national court). This case concerned a doctoral student with an option to take on paid work but no obligation to do so. He claimed he was not treated in the same way as other doctoral students who were required to work for the university. HELD - it is for the national court to determine objectively the existence of the constituent elements of any paid employment relationship, namely subordination and the payment of remuneration. Must verify the existence of the Union criteria for 'worker' and should examine the substance of the contractual documents and arrangements to give them effect.

Zambrano (2011)

(Free movement of persons - fundamental status of Union citizenship under Art 20 prevents EUCs from being deprived their rights). This case concerned children of TNC asylum seekers (Colombians) who were born in Belgium and had acquired Belgian nationality and were therefore EUCs. Belgium refused to grant the father a residence permit and unemployment benefits. BUT as an ascendant of an EUC, he should be entitled to reside and work in Belgium because without this he wouldn't be able to provide for and support his children, thus depriving them of their rights as EU citizens. Their fundamental status of EU citizenship (Art 20) was threatened by not allowing the father to receive the same benefits as would have been received by nationals of the MS. Argument by MSs that because the children had never exercised their right to free movement, their situation was outside the scope of EU law and thus wholly internal to the home MS. BUT Art 20 DOES NOT presume free movement. HELD - CRD did not apply (because it relies on free movement and the normal rules which apply to FMs). However, he COULD rely on the 'fundamental status' of Union citizenship under Art 20 which prevents EUCs from being deprived of the rights of their citizenship. CJEU based their decision on the core status of the EU citizen, even when there had bee no free movement.

Jia (2007)

(Free movement of persons - human rights considerations for family members of EUCs). J was the mother in law of a German national who was residing Sweden (therefore an Art 2(2)(d) definition of a FM). Previously, it had been ruled that a 'prior lawful residence' rule was allowed (i.e. a TCN spouse must be lawfully residence in a MS when he moved to another MS to which the EUC is migrating or has migrated). However, the CJEU held that EU law does not impose a REQUIREMENT on an MS to impose a prior lawful residence rule.

Trojani (2004)

(Free movement of persons - meaning of 'worker'). A worker is someone who pursues activities which are real and genuine. The features of employment is that: - for a certain period of time - a person provides services for and under the direction of (another person) - in return for remuneration. This case also distinguishes between self-employed and a worker. Art 21 does not, of itself, provide a right of residence for citizens who lack sufficient resources but these citizens are entitled to equal treatment so long as they remain lawfully resident.

Grzelczyk (2001)

(Free movement of persons - non-discrimination under Art 18 TFEU). This case involved a French student who applied for a Belgian social security benefit called 'minimiex'/minimum subsistence allowance. He was refused on the ground that he was not 'settled' in the UK. When he took his case to a Belgian tribunal, they referred the matter onto the CJEU, who had to decide whether the rule regarding who was entitled to minimex was compatible with Art 18. HELD - the way that the rule was applied, by refusing to grant the minimum to international student in Belgium, was discriminatory against Art 18 TFEU.

Bressol (2010)

(Free movement of persons - non-discriminatory restrictions). Here, the CJEU ruled that a non-discriminatory limitation on places in University medical schools based on a residence requirement could be justified on the grounds of public health protection if there is a genuine risk to the protection of public health in the host MS if long-term residents of that MS find it more difficult to obtain places at medical schools (and the limitation is proportionate).

Morgan and Bucher (2007)

(Free movement of persons - non-discriminatory restrictions). This case concerned a German national who went to work in the UK. After one year, he began studying in the UK. He applied for an academic grant from Germany but was refused, because their grant was only available for a continuing undergraduate programme where at least one year was partaken in Germany. So because of his exercising his free movement, he wasn't entitled to financial aid. HELD - the principle of equal treatment applied and the rule fell within the scope of EU law. The rule put those who exercised their right of free movement at a disadvantage/a deterrent, and therefore a breach. It was a non-discriminatory measure because it applied to nationals as well as foreign nationals. The justification was budgetary i.e. to prevent a general reduction in education allowances in the home MS. It was found legitimate to require a link between, society and the education system. The measure between these things is the degree of integration. On the facts, because the applicant was raised and schooled in Germany, it was deemed that a German citizen having left the state after secondary education was integrated. The restriction was too general and was found to be disproportionate and thus a breach of equal treatment.

Lida (2012)

(Free movement of persons - parallel family rights). Here, a Japanese national in Germany had a work permit. His daughter, who was born in Germany and had been granted German nationality, moved to Austria and the question arose as to whether the daughter who was a FM and had exercised right to free movement could provide the Japanese national with a right to reside in a MS. HELD - because the applicant had always lived in Germany and hadn't himself exercised a right of free movement, he couldn't gain right to residence via his daughter who had EU citizenship in her own right. The applicant would have to go to Austria, but not another country within the EU.

Metock (2008)

(Free movement of persons - prior lawful residence in a MS is not needed). Overruled Akrich. This case concerned asylum seekers who were spouses of EU citizens. The EUCs moved to Ireland and were joined by their spouses from outside the EU. Those spouses then sought asylum. HELD - third country national spouses who were asylum seekers COULD join a EUC, as long as their marriage wasn't a sham marriage under Art 35 CRD (genuine marriages which can't be questioned). CRD provides that the EUC can move to host MS with their family members OR can be joined by their spouse. The fact that they were being joined in the host MS meant that EU law was engaged and it was not possible for the Irish government to rely on the fact that the third-country national spouses didn't have 'prior lawful residence' in a MS before joining the EUC in the host MS. By virtue of being family members, they should be granted access under the same conditions. It was not a retained competence of the MS to refuse entry so long as the required documents are provided. Court also emphasised the importance of the right to family life - if the prior lawful residence rule was allowed to continue, the objectives of the Treaty would be seriously obstructed. Also said that restrictions to right of entry and residence on grounds of public policy/security/health do apply equally to FMs as well as EUCs.

Costa v ENEL (1964)

(Supremacy of EU law). Established that MSs had agreed to prioritised EU law above their own in certain areas.

Collins (2004)

(Free movement of persons - reconciliation with Art 24(2) CRD). The rule in this case was a non-discriminatory rule (because you could have a UK national who was seeking the allowance and was not habitually resident in the UK but was subject to the same rule). Nonetheless, the CJEU held that the rule was a restriction on the right of free movement because it would deter people from exercising their rights to move to another MS and seek work which is an EUC right under Art 21 TFEU. However, the UK then justified the rule on the basis of an ORPI - namely the protection of the viability of their social security. The court looked for a test to determine whether such a rule was necessary and appropriate. It decided that so long as the rule showed a REAL LINK between applicants and the labour market of the MS concerned, it was a legitimate rule and it was an appropriate rule for protecting the labour market. The existence of such a link can be determined e.g. by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the MS in question. If the job-seeker establishes the 'real link', he/she is entitled to receive a benefit of a financial nature intended to facilitate access to the labour market.

Oulane (2005)

(Free movement of persons - requirement for ID card). This case concerned a French national who was detained by Dutch police. He had no ID documents on him but had produced them on a previous occasion. He was deported. This was found to be a violation of Art 21. The right of residence is not conditional on possession of a passport. Right to entry is a right under EU law. Documents are evidence of the right of EU citizenship and not a precondition for the exercise of that right. The applicant was able to show other evidence than a passport/ID card. This is sufficient if it proves unequivocal evidence of the nationality of a national of another MS.

Surinder Singh (1992)

(Free movement of persons - restriction by a home MS on its own nationals' right of return/re-entry). A British national married an Indian national and travelled with him to Germany where they worked for some years before returning to the UK. The UK would not allow the British wife to return with her husband on the basis that he did not satisfy UK immigration law. HELD - the Treaty was engaged, because the period of residence in Germany had created a connection with EU law, and hence the husband was not a spouse of an EU citizen.

Orfanopoulos and Oliveri (2004)

(Free movement of persons - restrictions on entry/residence based on criminal convictions). Germany sought to deport two men. One was Greek and the other was Italian, and both had been convicted in Germany for drug offences, violence offences and theft (a mixture of previous criminal convictions). Under national law, there was a general rule that a person who had more than 2 years of custodial sentence would be deported if their offences were drugs related. The question was whether this rule could be imposed against the O and O on the basis that their personal conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (the test for public policy and security restrictions). If so, was deportation proportional to that threat? HELD - the 2 year rule was a general rule of preventative nature (a blanket rule that did not take into account the personal conduct of the individuals). Because it was automatic, it was found to be disproportionate. They could not be deported on the reliance of the 2 year in custodial sentence rule. BUT there was still scope for the MS to come up with an assessment based on the conduct of these individuals that determined whether they as individuals satisfied the test. If they did, the MS would have to take into account fundamental rights and procedural safeguards as reasons not to automatically deport them. Such measures must not be discriminatory and must conform with the principle of equal treatment.

Adoui and Cornuaille (1982)

(Free movement of persons - restrictions on entry/residence). 2 French women were refused residence permits in Belgium on public policy grounds, because they were prostitutes. Belgium wanted to take a moral position on criminal sanctions, but prostitution was lawful in Belgium and it was possible for brothels to be lawfully registered. Their argument was therefore invalid. Belgium argued that they did not wish to encourage prostitution but nevertheless the CJEU found that this was a breach of the equal treatment principle because, had the woman been Belgium national who had been working at such premises then the same action would not have been taken, and therefore it violated those principles. Even if such activities had been unlawful and therefore there would not necessarily have been a breach of the equal treatment rule, there might still have been an issue as to whether there was a sufficiently serious threat to the fundamentals of society or if a deportation from a MS would be a proportionate solution.

Calfa (1999)

(Free movement of persons - restrictions on entry/residence). An Italian national, returning from a holiday in Greece, had a small amount of cannabis found in her luggage. The penalty against tourists who were found with cannabis would have, at the time, been deported for life from Greece. Evidence was put forward that a Greek national who was arrested for a similar amount of cannabis on their person would at the most be sentenced to 6 months' imprisonment, and in almost all cases that would be suspended so that in practice there would be no custodial sentence. The court found that this was no comparable to expulsion for life anyway. Not only was this a breach of the equal treatment principle, but it would also be disproportionate to ban a citizen for life for such an offence, bearing in mind that criminal sanctions applying to nationals would have to be applied.

Uecker and Jacquet (1997)

(Free movement of persons - reverse discrimination/"wholly internal situation" of EU citizenship). Two German nationals living in Germany married nationals who were from Africa; their spouses had never lived in Germany but then came to Germany in order to join them. Their spouses sought work but were not granted equal treatment in terms of their employment rights/associated rights with fellow German workers (i.e. they were not given work permits). Could they argue that they were FMs of EU citizens? Yes, but the Treaty had not been engaged. This was outside the scope of EU law because there had been no cross-border element. Here, the national of the home MS who were being joined by their spouses from outside the EU had not exercised their rights of EU citizenship and therefore this was not a case within the personal scope of the Treaty.

Lassal (

(Free movement of persons - right of permanent residence). Provisions of EU citizenship are applicable as soon as they enter int force, and would apply to the present effects of situations arising previously. e.g. if a person had already acquired 5 years of residence in a host MS prior to the PR citizenship coming into force in April 2006, they will still be recognised as a permanent resident.

Martinez Sala (1998)

(Free movement of persons - right to enjoy equal treatment with nations of host MS). A Spanish nationally lawful resident living in Germany, having resided here for more than 10 years. She had previously worked, but ceased to work and was in receipt of social assistance. She then applied for chid benefit which was refused because she did not have an up to date residence permit. Germany therefore argued that she did not come within the scope of the Treaties. She was clearly an EU citizen and had exercised her right to free movement, but was she under a right to equal treatment? HELD - because she had already been authorised to reside there, she came within the personal scope of the provisions of the TFEU on European citizenship. Wherever a MS has a national rule extending to all of its national citizens, the same rule should apply to an EUC with PR without discrimination.

I (2012)

(Free movement of persons - seriousness required to expel a permanent resident). Where that persons has been a resident for more than 10 year, expulsion is only permitted if the decision is based on "imperative" grounds of public security. This case concerned a convicted paedophile who had lived in Germany since 1987, so had been a PR for more than 10 years. He was single and had limited spare time (no FMs so social issues didn't come into play). He did not have the status of a worker, having only been employed occasionally in that period. He was sentenced in 2006 to 7 years and 6 months imprisonment fora sexual assault and rape. The sentence was not perceived by everyone to be sufficient. Germany, in preparation for the situation where he would be released, took a decision that has a result of his crime, he had lost his right of entry for residence, in particular relating to the serious nature of the offence committed and the risk of him re-offending. He was ordered to leave Germany, failing which he would be deported to Italy. He brought an action against the expulsion decision. The national court referred the case to the CJEU to interpret the seriousness of the threat to public security and also imperative grounds of public security under Art 28(3) CRD. HELD - the court referred to Art 83 TFEU (importance of combatting crimes involving sexual exploitation of children), and decided I's actress regarded as a particular serious crime. CJEU said that criminal offences such as those referred to in Art 83 can constitute particularly serious threats in relation to the fundamental interests of society and that may justify an explosion measure if the manner in which those crimes were committed dislocates particularly serious characteristics. CJEU did say that a factor in the decision COULD be the threat to the calm and physical security of the population, but political outcry cannot solely form the reason for expulsion. CJEU also emphasised the importance of the relevant time periods and the importance of bearing in mind that the person must be a PRESENT threat. CJEU reverted decision-making back to national courts for them to decide, based on the information provided.

Rottmann (2010)

(Free movement of persons - the right of EUCs to enjoy the substance of the rights flowing from their status under Art 20 regardless of whether or not they have actually exercised the right of free movement). A MS only has autonomy to revoke nationality (and thus an EUC's status under Art 20) if such a revocation is a proportionate sanction for obtaining that nationality by intentional deception. The withdrawal of nationality status is subject to general principles of law and must be consistent with proportionality and fundamental rights because it is the basis for acquiring the fundamental status of EU citizenship. Facts of the case: an Austrian national moved to Germany and transferred his nationality status from Austrian to German because he became naturalised in Germany. However, Germany decided to withdraw R's naturalisation because they believed that it had been acquired by deception on some information that he had given to acquire the status of a national in Germany. R argued that this would mean that he would lose his right as an EU citizen because he would effectively become stateless, even though he had been an Austrian national and had given up those rights to take on naturalisation in Germany. The court found that, even though he had effectively become a national in Germany, the Treaty was engaged through Art 20 (rights of EU citizen) and any revocation of nationality by a MS must be proportionate (taking into account the situations where individuals can lose their rights as an EU citizen). So the court must take into account the seriousness of the offence in question.

Vatsouras (2009)

(Free movement of persons - the scope of Art 7(3)(c) of the CRD). V & K became involuntarily unemployed after short period of employment and were denied benefits. The question arose whether they were workers who would then be entitled to the benefits on the basis of equal treatment, and if so no conditions could be imposed upon them because they retained the status of a worker. This would be a matter determined by the national court. If found to be workers (even for a short period) they would retain this status, subject to the conditions in Art 7(3), and be entitled to the benefits during a period of job-seeking lasting six months. BUT if the person does not meet the worker conditions, their category changes to become a non-economically active EUC falling within Art 7(1)(b). (Reconciliation with Collins). This case also found that job-seeking allowance is a benefit of a financial nature which is intended to facilitate access to the labour market and cannot be regarded as constituting social assistance within the meaning of Art 24(2) CRD. The CJEU distinguished work-related benefits (so any benefits which link to the labour market) from other forms of social assistance. Benefits or social assistance that relate to work e.g. unemployment allowance/job seekers benefits, are concerned with labour market access and so there is a link with Art 45 TFEU. Work related benefits are not concerned with social assistance, and said benefits will be determined by applying the Collins case. A MS could still rely on a rule which restricts access to those work-related benefits, but they would have to do so in a way that is non-discriminatory and they would have to justify them by reference to the public interest of social solidarity and be proportionate.

Antonissen (1991)

(Free movement of persons - work seekers). Art 45 only refers to the right of workers to move to another MS to "accept offers of employment actually made". On a strict reading, work seekers do not fall within this provision. HOWEVER, their intermediate status was recognised in this case. The courts said that you could recognise that Art 45 is not an exhaustive list of those who are workers, so a work seeker could be a worker, but they would be subject to certain limits and it was legitimate for an MS to impose certain restrictions on them. The applicant was appealing against a decision to deport him, claiming free movement as a worker under Art 45 as he had been looking for work in the UK. However, he had not found any for over six months. HELD - the CJEU held that it was reasonable for the MS to deport someone if they had not found work within six months.

Van Binsbergen (1974)

(Free movement of services - Art 56 is directly effective). Here, a Dutch lawyer took on clients in the Netherlands but then moved to Belgium whilst a case was going on. The Netherlands said you had to be resident in Netherlands in order to provide legal service. VB argued his freedom to provide services was protected under Art 56. CJEU held that his freedom was protected and Art 56 was directly effect.

Levin (1982)

(Free movement of workers - "real and genuine" activity includes part-time work). L worked as a chamber maid part-time. The Dutch government said that she was earning below minimum wage and couldn't support herself. The CJEU said that this wasn't relevant - so long as she was pursuing an economic activity, this counts as a worker. It would otherwise preclude a huge number of workers if the definition didn't include part-time workers.

Jany (2001)

(Free movement of workers - difference between workers and self-employed). There must be a relationship of subordination to be classified as a 'worker'. It was held that practising prostitution as a self-employed person can be establishment. However, to be established under the TFEU, the migrant EUC must have contributed on a stable and continuous basis to the economy of the host MS - their contribution cannot be transient otherwise they amount to 'services'. Remuneration can be financial or in kind.

Gebhard (1995)

(Free movement of workers - different between services and establishment). Services are temporary; establishment is permanent. German lawyer in Italy advised German-speaking clients on issues of Italian law. Other Italian lawyers complained to the Bar Council saying that he represented himself as an Italian lawyer when he was not. However, the CJEU found that he had been an established lawyer in Italy. CJEU applied the test of regularity, periodicity or continuity. The key fact was that he was able to advise German speaking clients in Italy. The fact that the infrastructure (e.g. officer/chambers) is temporary does not necessarily matter - need to look at the conduct and intentions of the individual instead. However, the restriction was justified on the basis that it was legitimate for the Milan Bar Council to have requirements regarding who could represent themselves as experts of Italian law and use this qualification on their paperwork. National rules liable to hinder/make less attract the exercise of fundamental freedoms must fulfil four conditions: 1. they must be applied in a non-disciminatory manner 2. must be justified s imperative requirements in the general interest 3. must be suitable for attaining the object they pursue 4. must not go beyond what is necessary in order to attain it (proportionality)

Netherlands v Commission (2012)

(Free movement of workers - equal treatments of workers). Dutch policy enabling children of workers who have travelled to work in the Netherlands and are enjoying social benefits to access grants for further education. They must have been resident in the Netherlands for three of the last six years. The Commission were concerned that this Regulation was excessively restricting to children of workers. A child of a worker should be admitted to training courses under the same rules as a national of a MS. Netherlands said they should be allowed to look fir a real link with Dutch employment before they award grants to students. CJEU held that they were not applying the CRD. Equal treatment means something different here: Equal treatment in relation to the context workers cannot require residence requirements since such a privilege would be discriminatory. More generous under the Regulation than under the CRD?

Commission v Netherlands (2012)

(Free movement of workers - exemplification of how differently workers may be treated). Dutch law requires students to be resident for 3 out of 6 years before applying for assistance with funding (indirectly discriminatory rule). Although it was INDIRECTLY discriminate, it still breached Art 10 FMWR because it created inequality between the children of migrant workers and the children of Dutch workers. Children of migrant workers should enjoy all the rights of children of national workers. Equal treatment for workers is broader than equal rights for citizens (because of cases such as Bidar where it was allowed to have different rules for nationals and non-nationals when applying for higher education funding).

Broekmeulen (1981)

(Free movement of workers - home MS must recognised qualifications obtained in another MS). A doctor from Netherlands (trained as a doctor in Belgium) wanted to return to Netherlands but was told he had to complete another year in Belgium to qualify to a satisfactory standard. However, there was harmonisation of medical qualifications requiring MSs to recognise qualifications awarded other MSs. A MS could specify qualifications required for specialists but the the doctor in this case was not specialised. Therefore, the Netherlands could not imposed requirements above those in Belgium.

Sodemare (1997)

(Free movement of workers - how long must establishment last?). In order to qualify as an establishment and be distinguished from providing services, the economic activity must be 'stable and continuous'. This case concerned establishment of a care home which provided services in Italy. Regional law said they would not reimburse fees of people choosing to reside in profit-making rather than non-profit making care. S challenged this, claiming it restricted his freedom to provide services. HELD - the CJEU said that he had set up his company and established himself permanently in Italy, and so couldn't rely on Art 56.

Bernini (1992)

(Free movement of workers - meaning of worker. Short duration does not, of itself, exclude employment from the scope of Art 45.

Hartmann (2007)

(Free movement of workers - what is a worker?) This case concerned a frontier worker. A worker who has been employed in a MS other than his own falls within the scope of Art 45. He worked in Germany but resided in Austria. He had exercised his freedom of movement as a worker irrespective of his place of residence/nationality (did not matter that he was an Austrian national living in Austria because he worked in Germany). H and his family moved across the Austrian border. His employment didn't change - all that happened was that he had moved house and was not living in Austria. His wife wanted to apply for a German welfare allowance to care for her child alone. The German government had wanted to encourage one parent to stay at home to look after the children. The wife was refused on the grounds that she lived in Austria. When they challenge this, the CJEU decided that even though H had moved house, he still qualified as a migrant worker an therefore was able to exercise his free movement under Art 45 and was entitled to a bundle of rights under the FMW Regulation. The benefit in question was a social advantage and restriction on it clearly had a policy aim, but the mechanism they had established to achieve this was disproportionate to the aim i.e. requiring people to only live in Germany was disproportionate. Substantial contribution to the labour market constitutes a valid factor of integration into the society of the host MS.

Dassonville (1974)

(The definition of an MEE). This case involved Belgian law which required certain products (such as Scotch whisky) to be sold only if they had a certificate of origin included with them. The traders involved in this case were prosecuted for selling Scotch whisky without a certificate, but they had bought it from France, where no certificate was required. The issue was whether this requirement fell within Article 34 or not. HELD - MEEs = "All trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-State trade". Effectively means that even though the intention of a measure may not be to create such a restriction, and even if its effect doesn't occur now but in the future/its effect is indirect not direct, it is still unlawful.

ITC (2007)

(Free movement of workers -). An employment agency refused to pay a fee to a private sector recruitment agency, despite being directly linked to a voucher system under the German social security system, arguing that the vouchers were only payable for jobs requiring compulsory social security contributions in Germany. Was the rule being applied by this private sector recruitment agency within the scope of Art 45? Yes. The CJEU accepted jurisdiction that a private sector recruitment agency has the task as a mediator or intermediary between those applying for jobs and those offering employment and therefore they, as the agents, can rely on Art 45 against a state body if the state body has acted in a restrictive way. It is a corollary of the worker's right to take up an activity as an employed person, and to pursue such an activity in another MS. The rule applied by Germany might place nationals from other MSs at a disadvantage, or deter them from leaving their MS and discourage them from seeking employment in the potential host MS, and therefore it was a prohibited restriction.

Commission v Denmark (Danish Company Cars) (2005)

(Free movement of workers). "It is settled case law that Art 45 TFEU prohibits not only discrimination, direct or indirect, based on nationality, but also national rules which are applicable irrespective of nationality of the workers concerned but still impede their freedom of movement".

Centros (1999)

(Freedom of establishment (companies) - secondary establishment). C established in the UK but wishes to trade in Denmark. They were refused because a company had to meet a strict minimum capital requirements, justified on the basis of public policy, to reduce the risk of bankruptcy. The rule meant that C could only trade i Denmark by establishing themselves there, which they could not do because of the requirement of capital. HELD - CJEU found there was legitimate competition and there was no abuse of domestic law by C. There had been no abuse of the right of establishment.The right to form a company in according with the law of a MS and to set up branches in other MSs is inhere in the exercise, in a single market, of the freedom of establishment guaranteed by the Treaty.

Laval (2007)

(Freedom of services - the clash between social issues and economic issues). FACTS. Where there is an actual or potential conflict between the internal market and labour standards in the MSs regarded as consistent with the Union's social policies. Here, a proportionality test was applied to balance freedom of establishment/services with non-discriminatory 'restrictions' on fundamental freedoms arising from the exercise of nationally or intentional recognised (or constitutional) fundamental social rights that provide a bassi for justification under the general principles of EU law.

Netherlands v Parliament (Biotechnology Patents) (2001)

(Harmonisation of intellectual property rights).

Unilever (2000)

(Incidental effect). Concerned a directive which required that MSs notify the Commission of draft technical regulations before they are adopted. Here, the national regulations had been correctly notified but there were issues of breach of a standstill order contained in the directive. HELD - there was a duty not he national court to refuse to apply the contravening national rules. In this case, EU law was used as a 'sword' by one private party to impose private contractual obligations on another - this does NOT fit in with the 'public law obligation' argument used in earlier cases.

CIA Security (1996)

(Incidental effect). Concerned a directive which required that MSs notify the Commission of draft technical regulations before they are adopted. National regulations not complying with notification requirements in the directive on technical standards could not be enforced against private individuals. EU law was used as a 'shield' against State non-compliance. HELD - the inapplicable national rule could not be relied on by one private party against another.

Pfeiffer (2004)

(Indirect effect). The requirement for national law to be interpreted in conformity with Union law is inherent in the stem of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness to Union law when it determines the dispute before it.

Bosman (1995)

(Principle of non-discrimination). Even non-discriminatory restrictions can be found to be in violation of the market access principle albeit that they are capable of objective justification by reference to a legitimate aim and subject to the operation of the principle of proportionality. A rule was provided by football authorities to retain a certain number of players from home countries in each football team. BUT restrictions on transfer of market of footballers/international players between MSs are a violation of the principle of non-discrimination, and it restricts the ability of persons to move freely and practise profession throughout the EU. (Free movement of workers - Art 45 TFEU). Article 45 TFEU is horizontally directive effective and so can be relied upon by individuals against a private authority.

Fedesa (1990)

(Proportionality). Three part test for proportionality: 1. is the measure suitable to achieve a legitimate aim? 2. is the measure necessary to achieve that aim? 3. does the measure have an excessive effect on the applicant's interests?.

Omega (2004)

(Push/pull effects of market integration and market regulation). Human rights v economic integration; winners and losers; cultural diversity; non-market values. Cross-cutting principles of market access, proportionality, and fundamental rights.

Francovich (1991)

(State liability). Italy was found liable by the CJEU for non-implementation of a Directive. Two months later, F & B sued Italy in the national court for damages. They had suffered loss because, at the time their employer went into liquidation, Italy had not set up a compensation fund for the employees of insolvent companies as required by the Directive. HELD - although the compensation provisions were insufficiently precise to be directly effective, F & B were entitled to a remedy under Union law. Three conditions for state liability that were reformed by Brasserie du Pecheur: 1. the rule of law infringed must have intended to confer rights on individuals 2. the breach must be 'sufficiently serious' 3. there must be a direct causal link between the breach and the damage

Factortame (No.2) (1991)

(Supremacy of EU law and conflicting national law). Where there is conflict between a national law and EU law, the doctrine of parliamentary sovereignty is modified by s2(4) ECA 1972 and will allow the conflicting domestic law to be disregarded. (Free movement of workers - definition of establishment). "The actual pursuit of an economic activity through a fixed establishment in another MS for an indefinite period".

Foster v British Gas (1990)

(What is 'the Member State' for the purposes of Art 288 TFEU?) The notion of the 'State' applies to a body, whatever its legal form, which is: 1. made responsible for providing a public service by a measure adopted by the State 2. the public service in question is under the control of the State, and 3. has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.

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