EU Law Exam Notes PDF

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Lecture notes - All lectures on EU law
European Law (Manchester Metropolitan University)
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Law of European Union Revision Notes
Topic 1 - Art. 267 TFEU: The Preliminary Rulings Procedure
What is Preliminary Rulings Procedure?
 Art.267 T.F.E.U.: National court, faced with question over interpretation or

validity of piece of E.U. law in case before it, can (or sometimes must)
request preliminary ruling from Court of Justice on meaning or lawfulness
of piece of E.U. Law in question.
 Purpose:
 “to guarantee respect for the distribution of powers between the
Union and its Member States and between the Union institutions,
 the uniformity and consistency of Union law and
 to contribute to the harmonious development of the law within the
Union.” (“The Future of the Judicial System of the E.U. – E.C.J., 1999)
What can be the Subject of a Preliminary Ruling?

 2 principal types of matters can be subject of ruling by C.J.E.U.:
1) Interpretation of T.E.U., T.F.E.U. & acts of institutions, bodies offices
and agencies of E.U.
2) Validity of acts of institutions, bodies offices and agencies of E.U.
 C.J.E.U. has no jurisdiction to give rulings on interpretation of national law,
on validity of national law or on compatibility of national law with E.U. law.
The Preliminary Reference

 Comprises question or questions about E.U. law, together with factual &
legal context of case.
 C.J.E.U. delivers preliminary ruling on correct interpretation or validity &
refers this back to national court, which decides case on basis of C.J.E.U.’s
ruling.
 For national court to determine timing of reference. But Irish Creamery
Milk Suppliers v Ireland (36 & 71/80).
 Parties have no right to reference. Can only be made by national court.
 Is not appeals procedure.
What type of Court of Tribunal can refer?

 Union concept – Politi (43/71)
 Dorsch Consult (C-54/96): Court or tribunal =
• Any permanent body
• set up in accordance with law
• which exercises a compulsory and independent judicial function
• according to the normal rules of adversarial procedure
• and has the power to apply legal rules
• and settle cases falling within the jurisdiction given to it by law.
 Broekmeulen (246/80): Dutch Appeals Committee for General Medicine =
“court or tribunal”. Court noted quasi-judicial nature of proceedings & was
exercising functions of public nature. Decisions arrived at after full legal
procedure on points of law.

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 Also, Italy’s Bar Council (Gebhard – C-55/94) & U.K.’s Immigration

Adjudicator (El-Yassini – C-416/96) = “court or tribunal”.
 Vassen (61/65): Reference made by Dutch Social Security Tribunal. Was
considered to be “court or tribunal” by Court as members & panels had to be
appointed & approved by ministers, procedures of tribunal were laid down
by ministers & tribunal was bound to apply law & was permanent body.
 BUT Borker (138/80): Court refused to consider reference from Paris Bar
Council as was not called to give judgment in proceedings. Case was not
going to result in decision of judicial nature.
 Nordsee (102/81): reference from privately appointed arbitration body
refused. Held arbitrators could not be court or tribunal as jurisdiction not
invoked by compulsory regime but because of private contract. Thus, not
sufficiently close link to national system of legal remedies. Also, there was no
“judicial decision”.
 Corbiau (C-24/92): reference made by Office for Director of Taxation.
Court refused reference. As body acting in both administrative & judicial
capacity, Court held lacked sufficient independence to be “court or tribunal”.
Refusal to Accept References

 Initially, was for national court solely to assess whether decision on question
of E.U. Law was necessary to enable it to give judgment.
 C.J.E.U. has changed attitude – acceptance of references not without
boundaries & controlled admissibility.
 Has declined to accept references where:
• there has been abuse or misuse of procedure;
• there has been no genuine dispute – Foglia v Novello (No.1)
(104/79) & Foglia v Novello (No.2) (244/80);
• there have been hypothetical or irrelevant questions - Meilicke (C-
83/91).
 Court of Justice encourages referral if matter genuinely requires a decision.
However, Court will not countenance collusive actions.
 Initially, was for national court solely to assess whether decision on question
of E.C. (now E.U.) Law was necessary to enable it to give judgment.
 Court has changed attitude – acceptance of references not without
boundaries & controlled admissibility.
 In Foglia v Novello (No.1) (104/79), held in absence of genuine dispute
between parties, Court has no jurisdiction to answer reference made to it.
Parties colluded to bring dispute before Italian courts. There was no
genuine dispute between them. Concocted dispute as wanted Court to
invoke art.110 T.F.E.U. so as to give Court opportunity to rule on illegal
French tax rule.
 Foglia, Italian wine merchant, entered into contract with Novello, Italian
national, for delivery of wine into France. Express clause in contract that
Novello would not compensate Foglia for any unlawfully levied taxes that
Foglia paid on transporting wine into France. French authorities imposed
unlawful tax on import of wine into France. Foglia paid tax. Foglia brought
proceedings against Novello, who refused to reimburse French tax levied on
Foglia.

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 Foglia v Novello (No.2) (244/80) – claimed national court and not Court
should determine when preliminary ruling heard. National court should
explain how it has come to conclusion reference is necessary. But Court does
not have jurisdiction to relating to interpretation of E.C. (now E.U.) law not
arising from genuine inter parties dispute.
When to Refer – Permissive Jurisdiction

 Art.267 (2) T.F.E.U.: Any court or tribunal at any level in the domestic
hierarchy and regardless of national constraints may refer if feels
“necessary to enable it to give judgment”.
Has a question involving E.U. law been raised?
Is there doubt as to the meaning or scope of a Union provision?
Does the court consider a preliminary ruling is necessary to enable it to give
judgement?
 Rheinmuhlen-Dusseldorf (146 & 166/73) – any national court which
considers that ruling on E.U. law will help it decide issue has discretion to
decide regardless of any national rules of precedent.
 Confirmed in Peterbroeck Van Campenhout v Belgium (C-312/93)
where rule of national procedural rule prevented court from making
reference. See also Factortame (No.1) (C-213/89) concerning constitutional
rules.
When to Refer – Mandatory Jurisdiction

 Art.267 (3) T.F.E.U.: A court or tribunal against whose decision there is no
judicial remedy (appeal) shall refer.
 What is a court “against whose decisions there is no judicial remedy under
national law”?
 Abstract theory: it can only mean the highest court in the land (e.g. Supreme
Court in U.K.) – supported by Lord Denning M.R. in Bulmer v Bollinger
(1974).
 Concrete theory: it includes courts which are judging in final instance in a
particular case (e.g. where Court of Appeal hears case but does not give
leave to appeal to Supreme Court, Court of Appeal is highest court in
particular case). View upheld in Costa (6/64). No right of appeal from
Italian Magistrates’ court because sum of money involved so small.
 Difficulty with concrete theory – what happens in U.K. when Court of Appeal
& Supreme Court refuse leave to appeal case decided in Court of Appeal?
Denial of preliminary ruling for applicant as case itself has closed & cannot
be reopened – e.g. Chiron Corporation v Murex Diagnostics Ltd. (No.8)
(1995)
 If the Court of Appeal refuses leave to appeal, and the Supreme Court is
presented with an application for leave to appeal, before it refuses leave it
should consider whether an issue of Union law arises which is necessary for
its decision.
No obligation to Refer – Precedent? Acte Clair?

 Is obligation on courts of last resort to refer questions of Union law to Court
of Justice absolute & unqualified, bearing in mind need for uniformity in
application?

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 C.I.L.F.I.T. (C-283/81) – No need to refer under art.267 (3) T.F.E.U. if:

1) The question of E.U. law raised is irrelevant; or
2) The provision has already been interpreted, in case where facts
materially identical – Da Costa (28-30/62) or even in case where
facts not strictly identical; or
3) The correct application of E.U. law is so obvious as to leave no scope
for any reasonable doubt (as to its application) – the “acte clair”
doctrine.
 Da Costa (28/62) – “The questions of interpretation posed in this case are
identical with those settled in the earlier case of Van Gend en Loos and no
new factor has been presented to the Court.”
 C.I.L.F.I.T. (283/81): interpretation is “so obvious as to leave no

scope for any reasonable doubt as to its meaning.”
 But national court must :
 be convinced matter is equally obvious to courts of other
M.S.;
 be sure language differences will not result in inconsistent
decisions in M.S.;
 apply rule of Union law having regard to wider objectives of
Union
 In particular obviousness is assessed in light of:
1) the specific characteristics of Union law.
2) the particular difficulties to which its interpretation gives rise.
3) the risk of divergences in judicial decisions within the Union.
 Acte clair = clear act. Interpretation is “so obvious as to leave no scope for
any reasonable doubt as to its meaning.” When meaning is clear, no need to
refer.
Effects of Preliminary Ruling

 Interpretation – referring court/tribunal bound directly by it, other courts
bound indirectly – Kuhne (C-453/00).
 Validity – referring court bound directly, other courts bound only to note
decision (unlike annulment under art.263 T.F.E.U.) – International Chemical
Corporation (66/80).
 “Accelerated Procedure” – art.104a, C.J.E.U. Rules of Procedure
“Urgent Procedure” – art.267 (4) T.F.E.U
 Art.267 T.F.E.U. (ex-art.234 E.C.) ruling is compulsory judgment &

not advisory opinion.
Application of ruling falls to national court/tribunal that has made request.
National court bound by Court of Justice ruling on interpretation/validity.
 Interpretation – referring court/tribunal bound directly by it, other
courts bound indirectly.
 Validity – referring court bound directly, other courts bound only to
note decision (unlike annulment under art.263 T.F.E.U. (ex-art.230
E.C.)).
 Binding effect of preliminary ruling does not preclude national court
from seeking further guidance on interpretation/validity of E.U. law.

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 Art.267 (4) T.F.E.U.: “If such a question is raised in a case pending

before a court or tribunal of a Member State with regard to a person
in custody, the Court of Justice of the European Union shall act with
the minimum of delay.”
Provision introduced by Treaty of Lisbon.
Understandable given length of time normally takes for Court to give
judgment.
Reforms to the Preliminary Rulings Procedure

 Reforms? Due Report (1999):
 1) Provision expressly stipulating national courts have authority to decide
questions of E.U. law;
 2) Direction courts under art.267 (2) T.F.E.U. (ex-art.234 (2)) should not
systematically refer;
 3) The CILFIT conditions should be expanded under art.267 (3) T.F.E.U.
(art.234 (3) E.C.);
 4) National court should consult Court before declaring measure invalid;
 5) C.F.I. (now General Court) should be given jurisdiction to
hear preliminary rulings.
 Solution –Treaty of Nice gave General Court (ex-C.F.I.) jurisdiction to
hear preliminary references in specified areas – art.256 (3) T.F.E.U.
Importance of the Preliminary Ruling System to E.U Law
 Development of E.U. Law

• Court has construed powers to interpret E.U. law widely.
• Will give ruling on anything which forms part of E.U. legal order
(Treaty provision, secondary legislation, even international
agreements concluded by E.U.).
 A System of Precedent?
• Rulings on interpretation bind all national courts indirectly.
• Da Costa (28-30/62)
• C.I.L.F.I.T. (283/81)
• Arguably both cases set down system of precedent.
Importance of the Preliminary Rulings System to E.U law

 Creation of a Community (now Union) Legal Order
• Court used preliminary rulings to develop E.C. (now Union) legal
order & constitutionalise the E.C. Treaty (now T.F.E.U/T.E.U.)
• Through requests for preliminary references that Court able to
develop “twin pillars” of direct effect (enabling individuals to enforce
E.U. law in their national courts) & supremacy (ensuring E.U. law
takes precedence over conflicting provisions of national law).
• Van Gend en Loos (26/62)
• Costa (6/64)
 Preserving the Uniformity of Law

- As “supreme court” of Union, Court able through procedure to secure unity
of Union law & uniform interpretation of Union law across European Union.

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“The purpose of the preliminary ruling system is to prevent a body of case

law not in accord with the rules of Community (now Union) law from
coming into existence in any M.S.” – Hoffman LaRoche v Centraform
(107/76
Court accepted as having pre-eminent authority over interpretation &
validity of E.U. law.
Ensures E.U. law is interpreted and applied in same way across all M.S.
Combats the risk of different M.S. interpreting and applying Union law
differently.
 Judicial Review of E.U. Institutions

Allows Court not merely to give interpretations of Union law but also to rule
on the validity of E.U. legislation & administrative acts of E.U. institutions
 Art.267 T.F.E.U. allows Court not merely to give interpretation of
Union law but also to rule on the validity of E.U. legislation &
administrative acts of E.U. institutions.
Individual invoke national measure implementing E.U. act before national
court. In considering legality of E.U. act, court refer question of whether or
not E.U. act, providing legal authority for national measure, is lawful or not.
 Acts alongside direct action procedure in art.263 (4) T.F.E.U. &
indirect action procedure in art.277 T.F.E.U.
Topic 2 – The Primacy of EU law
Treaties and International Law

 International law = set of rules regarded & accepted as binding in relations
between States.
 When States come together & conclude treaties, States remain sovereign.
 They will have to exercise their sovereignty subject to international
obligations they have created

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 However, domestic legal effects of obligations = matter for national legal

orders of each State to determine.
Steiner: “The question of priorities between international law and domestic
law is normally seen as a matter of national law, to be determined
according to the constitutional rules of the State concerned...It will depend
on the terms on which international law has been incorporated into
domestic law.
Primacy and EU law
 Former E.C. Treaty made no mention of primacy of E.C. law.

 Remains case with T.E.U. & T.F.E.U. and E.U. law.
 M.S. believed E.C. law would apply in national legal systems in same way as
traditional international law:
 Would together be bound at European level;
 Could together amend Treaties at European level;
 E.C. law would not override domestic, sovereign legal systems.
 E.C. law would not challenge national sovereignty directly.
 Believed E.C. law would have effect in domestic legal systems to extent
national law allowed it.
What is Primacy of EU law?

 Simmenthal (106/77): “Every national court must, in a case within its
jurisdiction, apply Community (now Union) law in its entirety and protect
rights which the latter confers on individuals and must accordingly set
aside any provision of national law which may conflict with it, whether
prior or subsequent to the Community (now Union) rule.”
 M.S. must yield to E.U. law where there is conflict between national law &
directly enforceable E.U. law in areas covered by T.E.U./T.F.E.U., even if
national law is adopted after T.E.U./T.F.E.U. or relevant secondary act (e.g.
Regulation, Directive, etc.)
Role of the CJEU
 C.J.E.U. as judicial branch of the E.U. has implied concept into the Treaty (i.e.
Treaties impliedly required supremacy).
 C.J.E.U. as supreme constitutional court of E.U. has had legal authority
(based art.19 (1) T.E.U. & other Articles) to fill in gaps.
 Adopted teleological approach to interpretation of Treaties & their
constitutionalisation through creation of supremacy & direct effect.
Van Gend en Loos (26/62)
 “...this Treaty is more than an agreement which merely creates mutual

obligations between States.”:
 Community (now Union) constitutes new legal order of international
law.
 For benefit of which States have limited their sovereign rights, albeit
in limited fields.

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 Subjects of which comprise not only M.S. but also their nationals.
 Art.30 T.F.E.U. held to be directly effective (i.e. Van Gend could invoke it in
national court)
 Direct effect reliant on primacy of E.U. law – “twin pillars of E.U. Law” .
 Court did not rule directly on issue of primacy because Dutch constitutional
law provided E.C. Treaty took precedence over national law.
Costa (6/64)
 E.U. law is an integral part of legal systems of M.S. which must be applied by
national courts.
 E.U. & body of law has resulted from voluntary transfer of sovereignty to
Community (now Union) institutions by M.S.
 Autonomous legal order of Community (now Union) law in contrast with
ordinary international regime.
Union law takes priority over all conflicting provisions of national law
whether passed before or after Union measure in question.
 Political Reasons for Primacy

- In accordance with spirit & aims of E.C. Treaty (now T.E.U./T.F.E.U.) was
“impossible” for M.S. to accord primacy to domestic laws.
- “Aims” of Treaty – integration & cooperation – would be undermined by
M.S. refusing to give full effect to E.U. Law.
- Uniformity & effectiveness of E.U. law necessary if aims in Treaty to be
realised.
- Uniform & effective application of E.U. Law pre-requisite for successful
functioning of Union law.
- Objectives of E.C. Treaty (now T.E.U./T.F.E.U.) would be jeopardised if
application of Union law varied from M.S. to M.S. in deference to subsequent
legislation.
 Legal Justifications for Primacy
- “Spirit” of Treaty required M.S. to give full effect to Union laws which they
had accepted on basis of “reciprocity”.
- C.J.E.U. implied primacy into E.C. Treaty (now T.E.U./T.F.E.U.) because of
Preamble, art.4 (3) T.E.U. (“fidelity” clause), art.18 T.F.E.U. (non-
discrimination on grounds of nationality), art.288 T.F.E.U. (direct
application of Regulations).
- Obligations undertaken by M.S. in E.C. Treaty (now T.E.U./T.F.E.U.) would be
“merely contingent” rather than unconditional if were subject to subsequent
national legislative acts.
- Language of direct applicability in art.288 T.F.E.U. would be meaningless if
M.S. could negate effect of Union law by passing subsequent inconsistent
legislation.
 “The transfer by the States…to the Community (now Union) legal system of
the rights and obligations arising under the Treaty [E.C. Treaty, now
T.F.E.U./T.E.U.] carries with it a permanent limitation of their sovereign
rights, against which a subsequent unilateral law, incompatible with the
concept of the Community (now Union) cannot prevail.”

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 Thus, E.U. monopoly laws, adopted prior to conflicting Italian nationalising

law, able to take precedence over this Italian law and Costa able to invoke
them through concept of direct effect.
Internacionale Handelsgesellschaft (11/70)

 Using national law to judge validity of E.U. law would adversely affect
uniformity & efficacy of Union law. Validity of Union measures can only be
judged in light of E.U. law.
 “The validity of a Community (now Union) measure or its effect within a
Member State cannot be affected by allegations that it runs counter to
fundamental rights as formulated by the constitution of the state or the
principles of a national constitutional structure.”
 E.U. law supreme over all forms & sources of national law.
Conceded that Union recognised such fundamental rights as “integral part
of the general principles of law” whose protection be ensured “within the
structure and objectives of the Union.
Simmenthal (No.2) (106/77)
 “Every national court must, in a case within its jurisdiction, apply

Community (now Union) law in its entirety and protect rights which the
latter confers on individuals and must accordingly set aside any provision of
national law which may conflict with it, whether prior or subsequent to the
Community (now Union) rule.”
 National courts called upon to apply provisions of Union law under duty to
give full effect to provisions & must disapply conflicting legislation, even if
constitutionally does not have power & if legislation adopted subsequently.
 National court does not have to wait for its own national constitutional
court to declare conflict between national law & Union law. Ordinary court
to give immediate effect to E.U. law.
Factortame (No. 2) (C-213/89)

 National court must suspend national legislation that may be incompatible
with E.U. law until final determination on compatibility has been made.
 “The full effectiveness of Community (now Union) law would be...impaired if
a rule of national law could prevent a court seized of a dispute governed by
Community (now Union) law from granting interim relief in order to ensure
the full effectiveness of the judgment to be given on the existence of the
rights claimed under Community (now Union) law.”
 What are the consequences of national court not giving primacy to Union
law? Gives rise to State liability on part of State. Held in Francovich (C-
6/90) & confirmed in Factortame (No.3) (C-46 & 48 /93).
Treaty of Lisbon and Primacy

 Principle of supremacy never been explicitly set out within E.C. Treaty or
now T.F.E.U. or T.E.U.
 Remains product of teleology & constitutionalisation of C.J.E.U.
 But,
 Declaration 17 of Treaty of Lisbon

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 Opinion of the Council Legal Service of 22 nd June 2007.
Primacy and the UK

 Doctrines of parliamentary sovereignty & implied repeal – dualist State.
 European Communities Act 1972 ss.2 (1) & 2 (4)
 Pre-Factortame – Rule of Construction?
 Bulmer v Bolinger (1974)
 McCarthys Ltd. v Smith (1979)
 Garland v British Rail Engineering Ltd. (1983)
 Factortame (1990)
 E.O.C. v Secretary of State for Employment (1994)
 Thoburn v Sunderland City Council (2003)
 European Union Act 2011
Primacy and Other Member States

 France
 Nicolo (1990)
 Germany
 Solange I (1974)
 Solange II (1987)
 Brunner v The European Union Treaty (1994)
 Italy
 Frontini (1974)
 Poland
 K (2010
 Polish Membership of the European Union (Accession Treaty) (2005)
Topic 3 – Direct effect, Indirect Effect, State Liability and Art 258 T.FE.U
What is Direct effect?
 Direct effect is not same as direct applicability.

 Body of E.U. Law in Treaty is directly applicable – but not all provisions of
E.U. law are directly effective.
 Direct Effect is mechanism enabling individual or company to rely in
national courts on rights conferred by European Union law so they can
challenge inconsistent behaviour by M.S. or another individual.

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 C.J.E.U. has held, provided certain criteria are met, Treaty articles,
Regulations, Directives and Decisions all capable of having direct effect.
Concept not contained in T.F.E.U., developed by Court.
Van Gend en Loos (26/62)

 M.S. had limited their sovereign rights, albeit within limited fields as agreed
in Treaty.
 As result, independent supranational institutions were established.
 Community (now Union) was, therefore, new, autonomous legal order,
related to but distinct from international & national laws.
Subjects were both M.S. individuals, capable of gaining rights & being subject to
obligations; which were capable of being upheld under Community (now Union)
law in national courts.
Why did the Court create Direct effect?

 Need to complete common market.
 Direct effect was strong enforcement mechanism needed to ensure M.S.
complied with provisions they had agreed to.
 Direct effect would strengthen effectiveness of E.U. law, enabling completion
of common market.
 Further, would aid Commission in its art.258 T.F.E.U. enforcement role.
There was perceived weakness of art.258 T.F.E.U. enforcement mechanism.
Idea of “dual vigilance”.
 Provides an mechanism for individuals to enforce rights under Community
law.
 Along with art.267 T.F.E.U. ensures uniform application of E.U. law &
supports integration.
What was the legal basis for Direct effect?

 Court invoked “spirit” of E.C. Treaty (now T.F.E.U.) in support of concept of
direct effect. Developed Community (now Union)legal system in order to
achieve Treaty-stated aim of “an ever closer union” (deeper economic
integration). Would provide for uniformity & effectiveness.
 Court also referred to Preamble which mentions “citizens” as well as M.S.
 Court further argued preliminary rulings procedure under art.267 T.F.E.U.
implied that individuals before national courts could rely on E.U. law.
Scope of Direct effect

 Treaty provisions which meet 3-fold criteria (the “Van Gend criteria”) are
capable of direct effect. Upheld in Reyners (2/74)
 A Treaty provision will be directly effective if:
1) It is clear and precise;
2) It is unconditional (i.e. leaves no room for discretion to
M.S. or Community institutions);
3) No further implementation by M.S. is required.

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 Primary law (Treaty provisions) and secondary legislation (Regulations,

Directives and Decisions) are all capable of producing direct effects if they
meet the Van Gend 3-fold criteria.
 But extent to which they are directly effective varies according to their
legislative scope.
Two types of Direct effect

 Direct Effect can be vertical or horizontal:
 Vertical direct effect – individual wanting to invoke provision of E.U.
law against the State (i.e. public & semi-public bodies).
 Horizontal direct effect – individual wanting to invoke provision of
E.U. law against another individual (i.e. natural or legal person)
(private individuals or company).
 Van Gend en Loos (26/62) established vertical direct effect of Treaty
provisions (provided meet the criteria).
 Defrenne v Sabena (43/75) established horizontal direct effect of Treaty
provisions.
 Leonesio (93/71) confirmed horizontal & vertical direct effect of
Regulations.
Direct effect of Directives
 “A Directive shall be binding as to the result to be achieved upon each

Member state to which it is addressed, but shall leave to the national
authorities the choice of form and methods” – art.288 T.F.E.U.
 Directives do not appear to be capable of direct effect because they require
implementation by the M.S. – thus they cannot meet the Van Gend criteria.
 But in Van Duyn (41/74), C.J.E.U. held that Directives can sometimes be
directly effective.
 “The useful effect (l’effet utile) of such an act would be weakened if
individuals were prevented from relying on it before their national courts
and if the latter were prevented from taking it into consideration as an
element of Community (now Union) law.”
 Directives are capable of having direct effect where:
 The Directive has not been implemented, or has been incorrectly
implemented;
 The deadline for implementation has passed – Ratti (148/78);
 The other Van Gend criteria are met – clear & precise +
unconditional.
 Where a M.S. has correctly implemented a Directive within the specified
time limit, the nationals of that M.S. are able to, and should, rely on the
national provisions.
Horizontal Direct effect of Directives

 Marshall (152/84) – Directives may only be directly effective vertically
against the State and “emanations of the State” but not horizontally against
natural and other legal persons.

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 Reason offered by Court against according horizontal direct effect based on

text of art.288 T.F.E.U. – binding effect of Directive exists only against State
to which addressed.
 “It follows that a Directive may not of itself impose obligations on an
individual and that a provision of a Directive may not be relied upon as such
against such a person.”
 Marshall: “Where a person is able to rely on a Directive as against the State
he may do so regardless of the capacity in which the latter is acting,
whether employer or public authority…It is necessary to prevent the State
from taking advantage of its own failure to comply with Community (now
Union) law.”
 Need to estop (prevent) M.S. from taking advantage of its own failure to
comply with obligations under Directive & denying individuals their rights.
 This is the “estoppel” rationale for giving direct effect to Directives and
contrasts with the “effet utile” rationale argued in Van Duyn. See also
Faccini Dori (C-91/92).
Emanation of the State

 Marshall: “Emanation of the State” includes all the organs of the State. No
distinction should be drawn between State as employer & State in some
other capacity. State should be treated as indivisible whatever of its
activities is engaged.
 Foster (C-188/89): “emanation of the State” –
 “A body, whatever its legal form,
 which has been made responsible, pursuant to a measure adopted by
the state,
 for providing a public service
 under the control of the state
 and given special powers for that purpose.”
 Foster criteria cumulative or alternatives?

• Kampelmann (C-253-258/96) - alternatives;
• Riser Internationale Transporte (C-157/02) – cumulative.
 “The State” has been held to include:
• tax authorities (Becker – 8/81),
• local or regional authorities (Fratelli Costanzo – 103/88),
• independent authorities responsible for maintenance of public order
(Johnson – 222/84),
• public authorities providing health services (Marshall – 152/84).
 English application: Doughty v Rolls-Royce plc. (1992), Griffin v South
West Water Services Ltd. (1995), N.U.T. v Governing Body of St. Mary’s
C. of E. Junior School (1997)
Limitations and Critique of Direct effect
 Must satisfy Van Gend criteria to secure direct effect of any provision.
 No possibility of direct effect for Directives until expiry of implementation
deadline.
 No horizontal direct effect for Directives.

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 Despite wide interpretation of “emanation of the State” result is

discrimination between litigants and restrictions on effectiveness of
Directives.
 Widely viewed as creating inequities by making distinction in law between
public bodies against whom Directive can be invoked and private ones
against whom it cannot. C.J.E.U.’s response – distinction only arises because
binding obligations imposed on M.S. (at least to implement) & not directly
on individuals.
Problems in achieving Direct effect
1) To be directly effective, provisions of E.U. law must satisfy Van Gend criteria:
 i.e. clear & precise,
 unconditional &
 not subject to further implementing measures (or after date for
implementation has passed for Directives).
2) Also, no horizontal direct effect for Directives, despite attempts made to
widen ambit of State as far as possible, through concept of “emanation of
the State”, in Foster.
 How then can individuals maximise their access to rights under E.U. law?
 By using either indirect effect or State liability.
Indirect effect – Von Colson (14/83)
 C.J.E.U. told national court to: “…interpret their national law in the light of
the wording and purpose of the Directive in order to achieve the (required)
result.”
 Legal basis for this decision: art.4 (3) T.E.U. – “fidelity” clause & art.288
T.F.E.U. – aims & objectives of Directives are binding in law.
 Indirect effect can apply regardless of whether action is horizontal (Harz
(79/83)) or vertical (in Von Colson), to ensure effectiveness of Directive.
Directive did not fulful Van Gend criteria.
 Therefore, eliminates distinction between public and private bodies that
exists in application of direct effect.
 Is this horizontal direct effect for Directives by the back door?
Indirect effect – Marleasing (C-106/89)

 Court affirmed Von Colson in that national courts must as far as possible
interpret national law in light of wording & purpose of the Directive in
order to achieve result pursued by Directive.
 Obligation applied whether the national provisions in question were
adopted before or after the Directive. Obligation applied even in horizontal
actions (between private parties). Here lack of horizontal direct effect for
Directive.
 No domestic legislation had been passed to implement the Directive.

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 Therefore, it does not appear to matter whether national provision was

introduced to comply with Directive or not – or even whether national
provision has been specifically introduced at all.
Limitations of Indirect effect
 Despite interpretive obligation placed on national courts in Von Colson &

Marleasing, there are limits as to operation of indirect effect.
 Wagner Miret (C-334/92): Doctrine need only be applied in so far as its
possible to interpret national legislation in light of aims & purposes of the
Directive.
 Kolpinghuis Nijmegen (80/86): indirect effect expressly constrained by
general principles such as non-retroactivity & legal certainty.
Arcaro (C-168/95): Interpretive obligation not be invoked when it would mean
the imposition of an obligation on an individual which would result in his criminal
(though not civil)
State Liability – Francovich (C-6-9/90)

 If cannot apply direct effect or not possible to use indirect effect, individual
may invoke State liability in order to claim damages for failure to
implement or implement correctly Directive.
 Legal basis for doctrine is art.4 (3) T.E.U.
 Individual may claim damages/compensation from State for not
implementing or not properly implementing Directive if:
1) Directive confers rights upon individuals;
2) Content of those rights is clearly identifiable by reference to
Directive;
3) There is a causal link between breach of State’s obligation and
damage suffered by individual.
State Liability – Brasserie du Pecheur & Factortame (No. 3) (C-46-48/93)

 Francovich doctrine of State liability applies to all breaches of Union law if:
1) Rule of law breached was intended to confer rights on individuals;
2) Infringement was sufficiently serious – i.e. did State manifestly and
gravely exceed the limits of its discretion? Breach must be definite,
clear cut and inexcusable;
3) There is causal link between breach of State’obligation and damage
suffered by individual.
 Replaces initial Francovich criteria for State liability.
 What is “sufficiently serious” breach of E.C. law? Answer = Did M.S.
“manifestly and gravely disregard the limits on its discretion”?
 Factors to be taken into account according to Court:
1) Clarity and precision of rule breached – R v H.M. Treasury, ex
parte British Telecom (C-392/93);
2) Measure of discretion left to M.S. – R v Ministry of Agriculture, ex
parte Hedley Lomas (C-5/94);
3) Infringement and damage – intentional/voluntary – Dillenkofer (T-
178, 179 & 188-90/94);
4) Error of law – excusable or inexcusable;

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5) Whether a community institution contributed to omission;

6) Adoption or retention of national measures or practices contrary to
Community law.
Dual Vigilance
 Individual may bring an action against M.S. (or individual) in national court
under doctrines of direct effect, indirect effect and State liability.
 Doctrine of direct effect, in particular, was created by C.J.E.U. as “an
effective supervision in addition to the supervision entrusted by [art.258
and 259 E.C.] to the….Commission and the Member States.” – Van Gend en
Loos (26/62).
 T.F.E.U./T.E.U. contain methods used by Commission for ensuring that M.S.
comply with their Union obligations.
 Art.17 (1) T.E.U.: the Commission “shall ensure the application of the
Treaties and measures adopted by the institutions pursuant to them.”
 Duty implemented by art.258 T.F.E.U.: “If the Commission considers that a
Member State has failed to fulfil an obligation under the Treaties, it shall
deliver a reasoned opinion on the matter after giving the State concerned
the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period
laid down by the Commission, the latter may bring the matter before the Court of
Justice of the European Union.
Art. 258 TFEU: Administrative Stage

1) Informal enquiries
- Informal dialogue with M.S., under duty to cooperate.
2) Formal – Letter of Enquiry
- Commission sends formal letter giving details of breach & inviting M.S. to
submit observations.
3) Formal – Reasoned Opinion
- Must be issued if Commission considers there to be breach.
- Must set out details of provision & breach.
- Must respond to any M.S. arguments of compliance.
- Must state steps to be taken by M.S. to correct infringement.
- Must give M.S. opportunity to comply with Opinion within reasonable time.
Art 258 TFEU: Judicial Stage

 If M.S. does not comply with Reasoned Opinion within specified time limit –
Commission may take the M.S. before C.J.E.U.
 When case goes before C.J.E.U., Commission may only rely on matters that
have been included in Reasoned Opinion.
 Commission does not have to commence proceedings immediately on expiry
of the time limit in Reasoned Opinion. Has final decision as whether & when
action is brought before C.J.E.U.
 Judgment rarely favours M.S. (only 1 in 10 decisions).
 Action may be settled before judgement is given.
 E.C.J. decides case de novo.

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 Hears submissions made by both sides.
Defences for Breach of EU law

 C.J.E.U. generally unreceptive to M.S. defences. Obligation to comply with
Community law is strictly interpreted.
 Reciprocity – Commission v United Kingdom (C-146/89)
 Force Majeure – Commission v Italy (Re. Transport Statistics) (101/84),
McNicoll v Ministry of Agriculture (296/86)
 Internal Situations – Commission v France (C-265/95), Commission v
United Kingdom (C-56/90)
 Constitutional and Political Difficulties – Commission v Belgium (77/69)
Failure to comply with judgement

 M.S. is under duty to comply with judgment under art.258 T.F.E.U.
 Failure to observe a judgment will constitute breach of art.260 (1) T.F.E.U.
 Under art.260 (2) T.F.E.U. Commission may then commence new
infringement proceedings for breach of art.260 (1) T.F.E.U.
 May bring case before Court after giving M.S. opportunity to submit
observations. No need for Reasoned Opinion (Lisbon Reform). Commission
to specify amount of lump sum or penalty to be paid by M.S. which considers
appropriate in circumstances.
Under art.260 (3) T.F.E.U., when Commission brings action against M.S. under
art.258 T.F.E.U. for failure to comply with obligation to notify Commission of
measures transposing Directive, may specify lump sum or penalty payment. If there
is infringement, Court may impose lump sum or penalty payment not exceeding
that laid down by Commission. No need for art.260 (2) T.F.E.U. proceedings.
Topic 4 – Judicial Review, Plea of Illegality, Failure to Act and Damages
Purpose of Judicial Review
 C.J.E.U. has sole authority to review the legality of Union legislation & to
declare legislation void.
 Art.263 T.F.E.U. provides mechanism for ensuring Union institutions act
within their powers (as conferred by M.S. under T.E.U./T.F.E.U.) – allows
legality of acts of the Union institutions to be challenged.
Art.263 T.F.E.U., thus, enables the C.J.E.U. to consider whether legally binding
measure infringes procedural or substantive rules of E.U. law and should,
consequently, be rendered void under art.264 T.F.E.U.

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Which Acts can be reviewed?

 Art.263 (1) T.F.E.U. provides Court of Justice shall review the legality of:
a) Legislative acts (normally Regulations, Directives & Decisions where
passed under legislative procedure )
b) acts of the Council, the Commission and the European Central Bank
other than recommendations and opinions (normally Decisions),
c) acts of the European Parliament & European Council intended to
produce legal effects vis-à-vis third parties
d) acts of bodies, offices or agencies of the Union intended to produce
legal effects vis-à-vis third parties.
Legislative acts defined under art.289 (3) T.F.E.U. as any act adopted under one of
E.U.’s legislative procedures.
 C.J.E.U. has interpreted art.263 (1) T.F.E.U. broadly to include any act
which is capable of having legal effects.
 Council v Commission (E.R.T.A. Case) (22/70): “An action for annulment
must be available in the case of all measures adopted by the institutions,
whatever their nature or form, which are intended to have legal effects.”
 I.B.M. Corp. v Commission (60/81): “According to the consistent case law
of the Court any measure the legal effects of which are binding on, and
capable of affecting the interests of, the applicant by bringing about a
distinct change in his legal position is an act or decision which may be the
subject of an action for a declaration that it is void.”
What are the Grounds for Review?

 Art.263 (2) T.F.E.U.:
• Lack of competence – e.g. Meroni (9/56), Tobacco
Advertising Case (C-376/98).
• Infringement of essential procedural requirement – e.g.
Roquette Freres (138/79).
• Infringement of Treaty or any rule of law relating to
application – e.g. Fedesa (C-331/88) re. proportionality
or Opel Austria (T-115/94) re. legal certainty.
• Misuse of powers – e.g. WorkingTime Directive Case
(C-84/94), Giuffrida (105/75).
Time limit and Consequences
 Art.263 (5) T.F.E.U. provides that proceedings shall be instituted within 2
months of:
• Publication of the measure, or
• Its notification to the plaintiff, or
• The day on which it came to the knowledge of the plaintiff.
 Harshness of time limit somewhat mitigated by plea of illegality in art.277
T.F.E.U.
 Art.264 (1) T.F.E.U.: C.J.E.U. can declare act void. Where only part of act is
tainted with illegality, then can be severed from rest of act & declared void –
Netherlands v High Authority (6/54).
 Art.264 (1) T.F.E.U.: in case of Regulation, Court shall, if considers
necessary, state which of effects of Regulation declared void.

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Who can bring an action?

 Art.263 (2) T.F.E.U.: privileged applicants have automatic
locus standi. Have unlimited right of challenge. Can
challenge any act that produces legal effects.
 Privileged applicants = M.S., Council, Commission,
European Parliament.
 Art.263 (3) T.F.E.U.: semi-privileged applicants do not have automatic
locus standi. May bring an action but only to protect their prerogative
powers.
 Semi-privileged applicants = Court of Auditors, European Central Bank,
Committee of the Regions (Lisbon reform).
 Art.263 (4) T.F.E.U. (post- Lisbon) non-privileged applicants, natural or
legal persons, can challenge:
 An act addressed to that person.
 An act which is of direct and individual concern to that person.
 A regulatory act which is of direct concern to that person and
which does not entail implementing measures.
Legislative Acts – Direct Concern

 Act will be of direct concern to applicant if it leaves the State no real
discretion in implementation.
 If M.S. does have some discretionary power then measure is unlikely to be of
direct concern to applicant.
 Erdania v Commission (10 & 18/68)
 Alcon v Commission (69/69)
Legislative Acts – Individual Concern

 “Individual concern” interpreted very narrowly by
C.J.E.U.
 Failure to prove individual concern is often what prevents natural/legal
person from establishing standing & challenging an act.
 Not enough to show that business interests are adversely affected or more
seriously affected than other traders.
 Not enough to show that decision in question has bearing on individual’s
affairs.
Test for individual concern established in Plaumann & Co. v Commission (25/62) –
test is very strictly applied.
Individual Concern – Plaumann (25/62)
 “Persons other than those to whom a decision is addressed may only claim
to be individually concerned if that 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 and by virtue of
these factors distinguishes them individually just as in the case of the person
addressed…
 …In the present case the applicant is affected by the disputed Decision as an
importer of clementines, that is to say, by reason of a commercial activity
which may at any time be practised by any person and is not therefore such

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as to distinguish the applicant in relation to the…Decision as in the case of

the addressee.”
 Craig & De Burca: “The Plaumann test serves to emphasise that applicants
who claim to be individually concerned by a Decision addressed to another
can only do so if they are in some way differentiated from all other persons,
and by reason of these distinguishing features singled out in the same way
as the initial addressee. The test does, however, recognise that it is possible
for there to be more than one applicant who is individually concerned in the
above sense.”
 Hartley: in order to satisfy Plaumann test must fall within “closed class” of
persons affected by Decision – closed class “membership of which is fixed &
determined.”
Individual Concern – Toepfer (106-107/63)

 T applied to German government to import maize into Union. German
government refused to grant T and all other applicants a licence.
Commission issued Decision to German government confirming its refusal to
grant any import licences. T wanted to challenge this Commission Decision.
 Only persons affected by Commission Decision were those who had already
applied for a licence, including T – a closed category of persons.
 Therefore, Decision was held to be of individual concern to applicants &
challengeable – as if they were addressees.
 Also: U.N.I.C.M.E. v Council (123/77), Bock v Commission (62/70),
Simmenthal v Commission (92/78), Philip Morris v Commission (730/79)
Regulations and the “Closed Class” Test
 Pre-Lisbon, Regulation could only be challenged by

individual applicant if he/she could prove it was not true
Regulation but a Decision in the form of a Regulation – bundle of disguised
decisions addressed to each and every
applicant – to be determined by substance not form of
measure.
 If successful, applicant had to show “disguised” Decision was of direct &
individual concern to applicant.
 Thus:
1) Was there a Decision in the form of a Regulation?
2) Was that Decision of direct and individual concern to the applicant?
Regulations – International Fruit (41-44/70)

 Regulation was no more than bundle of Decisions addressed to
closed class of importers affected by it.
 Provision was not “a provision of general application within the
meaning of the second paragraph of art.288 T.F.E.U., but must be
regarded as a conglomeration of individual Decisions taken by the
Commission under the guise of a Regulation…each of which Decisions
affects the legal position of each author of an application for a
licence.”
 Post-Lisbon, appears Regulations per se may be challenged under

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art.263 (4) T.F.E.U. without need to show they are “disguised

Decisions”.
 Any legislative act may be challenged by non-privileged applicant so
long as “direct & individual concern” can be shown.
Regulations – Codorniu (C-309/89)
 Move from form of act to fact-based test of individual concern: If can be

established that Regulation can de facto apply to particular enterprises and
there has been course of dealing between them & Union institution prior to
adoption of act, then Regulation may be regarded having individual concern
– Codorniu SA v Council (C-309/89).
 Initial inability to challenge “true” Regulations under original ex-art.230
E.C. (now art.263 (4) T.F.E.U.) led Court to move to a test based more on
the facts. Need to look at the actual situation of the individual instead of
form of measure in question. A factual test. Now able to challenge “true”
Regulations under art.263 (4) T.F.E.U. which are of direct & individual
concern.
Legislative Acts – Individual Concern

 Pre-Lisbon, under ex-art.230 (4) E.C. (now art.263 (4) T.F.E.U.)
natural/legal persons only allowed to challenge Decisions addressed to
them, Decisions addressed to another of direct & individual concern to them
and Decisions in the form of a Regulation of direct & individual concern to
them.
 Post-Lisbon, under art.263 (4) T.F.E.U. natural/legal persons able to
challenge:
• Act addressed to him/herself;
• Act of direct & individual concern to him/herself (now including
“true” Regulation subject to fact-based test of “individual concern”);
• Regulatory act of direct concern to him/herself & not involving
implementing measures.
Reform of Plaumann Test
 U.P.A. (C-50/00P): A-G. Jacobs advised test should be redefined: because of
his/her particular circumstances “an applicant is individually concerned by
a Community measure where the measure has, or is liable to have, a
substantial adverse effect on his interests.”
 Jego-Quere (T-177/01): General Court – “A natural and legal person is to be
regarded as individually concerned by a Community measure of general
application that concerns him directly if the measure affects his legal
position in definite and immediate way by restricting his rights and
imposing obligations on him – irrespective of the number and position of
other persons likewise affected.”
 Rejection by C.J.E.U. & Treaty of Lisbon. Plaumann test remains. Any change
to be brought about by legislature.
Regulatory Acts
 Under art.263 (4) T.F.E.U. to challenge a regulatory act which does not
entail implementing measures, natural/legal persons only need to show

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direct concern. No definition is provided of regulatory acts. New provision at

Lisbon.
 Seems regulatory acts are intended to be non-legislative acts. Case to be
made for subjecting non-legislative acts to greater judicial scrutiny than
legislative acts. Latter enacted by representative institutions. Former
enacted by non-majoritarian institutions – e.g. Commission & agencies.
 If “legislative acts” are adopted under E.U. legislative procedure according
to art.289 (3) T.F.E.U., delegated & implementing acts may be “regulatory
acts”.
Plea of Illegality
 Art.277 T.F.E.U.: “Notwithstanding the expiry [of the 2 month time limit],
any party may, in proceedings in which a Regulation…is at issue, plead the
grounds specified in…art.263 T.F.E.U. in order to invoke before the Court of
Justice the inapplicability of that Regulation.”
 Indirect way of challenging the applicability of Regulation:
• either after 2-month time limit in art.263 T.F.E.U. has expired
• or where direct/individual concern cannot be shown.
 Not independent action: e.g. Simmenthal (92/78) & Meroni (9/56).
 Art.277 T.F.E.U. only available against Regulations.
 Cannot be used in proceedings before national court. Can
only be raised in proceedings before C.J.E.U.
 Grounds for review are same as under art.263 T.F.E.U.
 Operates as shield not sword. Not cause of action, merely
defence to application of act tainted with illegality.
 Wohrmann (31/62): “The sole object of the Article is to
protect an interested party against the application of an
illegal Regulation…which can no longer be challenged
because of the expiry of the time limit laid down in art.263
T.F.E.U.”
 If successful, Regulation declared inapplicable in particular case.
Failure to Act
 Union institutions (Council, Commission, Parliament, European Council,
E.C.B.) & other bodies, offices & agencies may also act unlawfully by failing
to act (failing to carry out a duty imposed on them by T.E.U./T.F.E.U.).
Addressed by art.265 T.F.E.U.
 Failure can be challenged by:
• Privileged applicants – as art.263 T.F.E.U. plus E.C.B. & Court of
Auditors.
Non-privileged applicants (natural and legal persons): individual must “be in a
position to establish either that he is the addressee of a measure of the Commission
having specific legal effects with regard to him which is, as such, capable of being
declared void, or that the Commission…has failed to adopt in relation to him a
measure which he was legally entitled to claim by virtue of the rules of Union law.”
– Bethell v Commission (246/81)
 Institution must, firstly, be called upon to act.

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 If, within 2 months of being so called upon, institution concerned not

defined its position, action may be brought before Court within further
period of 2 months.
 Art.266 T.F.E.U. – institution, body, office or agency whose failure to act
been declared contrary to T.F.E.U. be required by Court to take remedial
action so as to comply with Court’s judgment.
Claim Damages
 Art.268 T.F.E.U.: Court jurisdiction in disputes relating to compensation for
damage provided for in art.340 (2) & (3) T.F.E.U.
 Non-contractual liability – art.340 (2) T.F.E.U.: in case of non-contractual
liability Union make good any damage caused by institutions or by servants
in performance of duties. Art.340 (3) T.F.E.U. relates specifically to liability
of E.C.B.
 No limitations on who can bring an action.
 Time limit is 5 years.
 Institutions may be vicariously liable for their staff – but restrictive
interpretation.
 In Lutticke v Commission (4/69), C.J.E.U. laid down some rules regarding
liability:
• Actual damage – damage foreseeable with sufficient
certainty if damage cannot yet be precisely assessed Kampfmeyer
(5/66). Loss of profits? Roquettes Freres (26/74) – “actual, certain
& concrete”. Losses are certain & specific, not speculative or
anticipated.
• Causal link between the alleged unlawful Community conduct and
the loss or damage (causation).
• Fault – negligence, failure to consider relevant facts, failure to
supervise bodies with delegated powers.
Schoppenstedt (5/71)
 “The Community (now Union) does not incur liability on account of a
legislative measure which involves choices of economic policy unless a
sufficiently serious breach of a superior rule of law for the protection
of the individual has occurred.”
Thus:
1) Does the legislative act involve choices (discretion) on the part of the
Union authorities? If yes,
2) Has there been a breach of a superior rule of law? – i.e. breach of
general principles such as proportionality, non-discrimination,
equality, legal certainty, legitimate expectations, etc.
3) Is the breach “sufficiently serious”? Where Union has legislated in
complex economic field involving conferral of discretion, Union not
liable unless institution has “manifestly and gravely disregarded the
limits of the exercise of its power.”
“Sufficiently Serious Breach of a Superior Rule of Law”

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 Breach must be sufficiently serious violation of superior rule of law for

protection of individuals.
 Where institution acted with discretion, applicant must show that
institution manifestly and gravely disregarded limits of its powers.
Restrictive approach.
 In Bayerische (83 & 94/76, 4, 15 & 40/77), Court’s assessment based
upon effect of measure.
 Court has also focused on nature of breach, as in Amylum (116 & 124/77).
Court required institution’s conduct to be “verging on the arbitrary”.
- New test? Bergaderm (C-352/98): 1) Rule of law must be intended to
confer rights on individual; 2) breach must be sufficiently serious; 3) there
must be direct causal link between breach of obligation & damage caused.
- Parallels drawn directly with State liability.
Topic 5 – Free Movement of Persons
From Internal Market to Citizenship

 Free movement of workers (now persons) – one of the fundamental
freedoms underpinning Community (now Union) law in 1957.
 Ex-art.2 E.C. (now art.3 (2) T.E.U.) – objective of original Community =
creation of common market (free movement of goods + free movement of
factors of production, including workers).
 Art.26 (2) T.F.E.U. – internal (common/single) market = area without
frontiers in which there is free movement of goods, persons, services &
capital.
 Art.21 (1) T.F.E.U.: “Every citizen of the Union shall have the right to move
and reside freely within the territory of the Member States, subject to the
limitations laid down in these Treaties and by the measures adopted to give
it effect.”

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Primary and Secondary Provisions

 Treaty Provisions
- Art.45 (1) T.F.E.U.: “Freedom of movement for workers shall be secured
within the Union.”
- Art.49 T.F.E.U.: “…Restrictions on the freedom of establishment of nationals
of a Member State in the territory of another Member State shall be
prohibited.”
- Art.56 T.F.E.U.: “…Restrictions on freedom to provide services within the
Community shall be prohibited...”
 Secondary Legislation
- Regulation 492/2011 (ex-Regulation 1612/68)
- Directive 2004/38
Primary Rights to Free Movement – Directive 2004/38 art. 7 (1)

 What conditions must Union citizens fulfil for right of residence in another
M.S. for more than 3 months?
- Directive 2004/38 art.7 (1):
a) workers or self-employed;
b) those who have sufficient resources & comprehensive sickness
insurance;
c) those enrolled at private/public establishment for course of study,
with sufficient resources & comprehensive sickness insurance.
Primary Rights of Residence for Workers – Art. 45 TFEU

 Art.45 (1) T.F.E.U. & Directive 2004/38 art.7 (1): freedom of movement for
workers (right of residence in another M.S. for longer than 3 months).
 Regulation 492/2011 art.1 (1): Worker = national of M.S.
 Directive 2004/38 art.7 (1): Worker = Union citizen.
 Directly Effective? Royer (48/75), Bosman (C-415/93)
 What is a “worker”? Unger (75/63) – Union concept.
 Formal Test: Lawrie-Blum (66/85) –
a) performance of service of economic value,
b) under direction of another,
in return for remuneration.
 Economic Test: Levin (53/81) – “…the rules on the freedom of
movement for workers…only cover the pursuit of effective and
genuine activities, to the exclusion of activities on such a small scale
as to be regarded as purely marginal and ancillary.”
 Part-time Work: Kempf (139/85) – part-time work, earning below
minimum subsistence & reliance on public means?
 Fixed-term Work: Ninni-Orasche (C-413/01) – work as waitress 1
for only 2½ months under fixed-term contact?
 Unpaid Work: Steymann (196/87) – plumbing & general household work
in religious community for “keep” & pocket money?
 Rehabilitation?: Bettray (344/87) – work on drugs rehabilitation scheme
under social employment law?
 Trojani (C-456/02) – Can activities performed be “capable of being
regarded as forming part of the normal labour market?”

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 Raulin (C-357/89): duration & regularity are irrelevant.

 Kurz (C-188/00): “neither the sui generis nature of the employment
relationship under national law, nor the level of productivity of the person
concerned, the origin of the funds for which the remuneration is paid or the
limited amount of remuneration can have any consequence in regard to
whether a person is a worker.”
Retaining Worker Status

 Directive 2004/38 art.7 (3): Union citizen who is no longer worker or self-
employed, retain status where:
a) He/she is temporarily unable to work as result of illness or accident;
b) He/she is in involuntary unemployment after having been employed
for more than 1 year & has registered as job-seeker;
c) He/she is in involuntary unemployment after completing fixed-term
contract of less than 1 year or after having become involuntarily
unemployed during first 12 months & has registered as job-seeker.
Status retained for no less than 6 months.
d) He/she embarks on vocational training. Unless he/she is
involuntarily unemployed, retaining worker status requires training
to be related to previous employment.
Primary Rights of Residence for Jobseekers – Art 45 TFEU

 Right to enter M.S. to look for work – Royer (48/75)
 How long can someone stay while looking for work? – Antonissen (C-
292/89): no time limit but 6 months reasonable time but may be longer if
he/she is “actively, persistently & seriously engaged in seeking employment
& has genuine prospect of being employed.”
 Directive 2004/38 art.14 (4) (b): “An expulsion measure may in no case be
adopted against Union citizens or their family members if…the Union
citizens entered the territory of the host Member State in order to seek
employment. In this case, the Union citizens and their family members may
not be expelled for as long as the Union citizens can provide evidence that
they are continuing to seek employment and that they have a genuine
chance of being engaged.”
 Given that job-seekers have semi-status as workers under art.45 T.F.E.U.,

can they benefit from same social & tax advantages as workers? Collins (C-
138/02)
 Directive 2004/38 art.24 (2): “…the host Member State shall not be
obliged to confer entitlement to social assistance during the first three
months of residence or, where appropriate, the longer period provided for
in art.14 (4) (b).”
 Vatsouras & Koupatantze (C-22 & 23/08): are benefits which are
intended to facilitate access to labour market in host M.S. “social
assistance”? Rights for involunarily unemployed jobseekers under Directive
2004/38 art.7 (3)?
Primary Rights and Freedom of Establishment – Art 49 TFEU

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 Art.49 T.F.E.U.: “Restrictions on the freedom of establishment of nationals

of a Member State in the territory of another shall be prohibited.”
 Involves:
a) ability to take up & pursue activities as self-employed person
(exercised by natural persons) – also Directive 2004/38 art. 7 (1)
(a);
b) ability to set up & manage companies/firms (exercised by natural &
legal persons);
c) ability to set up agencies, branches or subsidiaries (exercised legal
persons).
Exercise of right by companies or firms (legal persons) – art.54 T.F.E.U
Primary Rights to Free Movement – Residence of less than 3 months

 Directive 2004/38 art.6 (1): No conditions/formalities other than
requirement to hold valid identity card/passport in order for Union citizens
to gain right of residence in M.S. For less than 3 months.
 Salah Oulane (C-215/03)
 Directive 2004/38 art.14 (1): to exercise right in Directive 2004/38
art.6 (1) Union citizens/T.C.N. family members must not become
unreasonable burden on social assistance system of host M.S.
 Directive 2004/38 art.24 (2): discretion on M.S. to decide whether to
grant social assistance to E.U. citizens/T.C.N. family members during first 3
months of residence.
Secondary Rights of Residence for Family Members

 Directive 2004/38 art.7 (1) (d): Right of residence for Union citizen
family members of primary beneficiary.
 Directive 2004/38 art.7 (2): Right of residence for T.C.N. family members
of primary beneficiary.
 What is a Family Member? Directive 2004/38 art.2 (2):
a) Spouse;
b) Partner with whom Union citizen has contracted registered
partnership (if law of host M.S. treats such partnerships as
equivalent to marriage).
c) Direct descendants who are under age of 21 or are dependants &
those of spouse/registered partner – Baumbast (C-413/99);
d) Dependent relatives in ascending line & those of spouse/registered
partner.
Secondary Rights of Residence for Family Members – Spouse

 What is a “Spouse”?
- Netherlands v Reed (59/95). What about cohabitees? Directive 2004/38
art.3 (2) (b)
 Marriages of convenience
- Directive 2004/38 art.35: M.S. can adopt necessary measures to refuse,
terminate or withdraw right in case of abuse of rights or fraud, such as
marriages of convenience.

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- Directive 2004/38 Recital 28: marriage of convenience = a “form of

relationship contracted for the sole purpose of enjoying the right of freedom
of movement and residence.
- Criteria in COM (2009) 313 indicating possible marriage of convenience – 1)
couple have never met before their marriage; 2) they are inconsistent about
their respective personal details; 3) they do not speak language understood
by both.
 Prior Lawful Residence Principle
- Akrich (C-109/01): T.C.N. spouse could move to another M.S. with migrant
citizen only once T.C.N. spouse had lawfully entered 1 M.S. under national
law (first point of entry principle) & lawfully resided there (prior lawful
residence principle)
- Metock (C-127/08): “Directive 2004/38 precludes legislation of a
Member State which requires a national of a non-member country who is
the spouse of a Union citizen residing in that Member State but not
possessing its nationality to have previously been lawfully resident in
another Member State before arriving in the host Member State, in order to
benefit from the provisions of that directive.”
Secondary Rights of Residence for Family Members – Dependant Relatives

 Jia (C-1/05) and Reyes (C-423/12):
1) He/she must show he/she is materially supported by Union citizen
exercising his/her Union rights
2) In determining existence of dependence, M.S. must assess whether
family member is not in position to support himself or herself in
country of origin at time when he/she applies for residence permit in
order to join Union citizen in M.S.
3) There is no need to determine reasons for dependence or, therefore,
for recourse to support.
4) Fact Union citizen is sending sum of money to family member,
necessary for him/her to support himself or herself, is sufficient
evidence that he/she is in real situation of dependence.
5) Family member cannot be required to prove he/she has searched for
job or has tried to acquire support from country of origin in order to
be regarded as “dependant”.
Secondary Rights of Residence for Family Members

 Directive 2004/38 Art.3 (2): M.S. should facilitate entrance of following
when accompanying primary beneficiary:
a) Any other family members, irrespective of nationality, who are
dependents or members of household of Union citizen (having
primary right of residence) or where serious health grounds require
care of family member.
b) Partner with whom Union citizen has durable relationship.
Rights of Residence upon Death or Departure

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 Directive 2004/38 art.12 (1): Death/departure not affect right of residence

of family members being nationals of M.S.
 Directive 2004/38 art.12 (2): No loss of right of residence for T.C.N. family
members on death providing been residing in host M.S. for 1 year before
citizen’s death (not applicable to departure).
 Right of permanent residence for remaining T.C.N. family member subject to
status as worker/self-employed person or sufficient resources & sickness
insurance.
Rights of Residence upon Divorce, Termination of Partnership or

Annulment
 Directive 2004/38 art.13 (1): Divorce, termination of partnership or

annulment not affect right of family members being nationals of M.S.
 Directive 2004/38 art.13 (2): Not entail loss of right of residence of Union
citizen’s family members not nationals of M.S. but:
 marriage/partnership must have lasted at least 3 years, inc. 1 year
in host M.S.; or
 spouse/partner has custody of children; or
 he/she has right to access children & court has ruled that such
access shall be exercised in host State; or
 right of residence warranted by particularly difficult circumstances
such as victim of domestic violence.
 Right of permanent residence for remaining T.C.N. family member subject to
status as worker/self-employed person or sufficient resources & sickness
insurance.
Conditions of Residence
 Directive 2004/38 art.8 (1): For periods of residence of longer 3 months,

host M.S. may require Union citizens to register with relevant authorities.
 Directive 2004/38 art.8 (2): Deadline should not be less than 3 months
from date of arrival. Failure to comply render person liable to proportionate
& non-discriminatory sanctions.
 Incorporates decisions in Royer (48/75) & Watson and Bellmann
(118/75).
Permanent Residence
 Directive 2004/38 art.16 (1): Union citizens having resided for

continuous period of 5 years in host M.S. have right of permanent residence
there.
 Ziolkowski & Szeja (C-424 & 425/10)
 Right open to T.C.N. family members who have legally resided with Union
citizen for same period under art.16 (2).
 Directive 2004/38 art.16 (3): Continuity of residence not affected by:
1) Temporary absences not exceeding total of 6 months a year;
2) Absence of longer duration due to compulsory military service;

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3) One absence of maximum of 12 consecutive months for important

reasons such as pregnancy & childbirth, serious illness, study or
vocational training or posting in another M.S. or 3rd country.
 Directive 2004/38 art.16 (4): Loss of right through absence from host M.S.
for period exceeding 2 consecutive years – Lassal (C-162/09)
Equal Treatment for Union Citizens

 Art.24 (1) T.F.E.U.: “…all Union citizens residing on the basis of this
Directive in the territory of the host Member State shall enjoy equal
treatment with the nationals of the Member State within the scope of the
Treaty. The benefit of this right shall be extended to family members who
are not nationals of a Member State and who have a right of residence.”
 Martinez Sala (C-85/96)
 Grzelczyck (C-184/99)
 Art.24 (2) T.F.E.U.: “…the host Member State shall not be obliged to confer
entitlement to social assistance during the first three months of residence
or, where appropriate the longer period in art.14 (4) (b), nor shall it be
obliged, prior to acquisition of the right to permanent residence, to grant
maintenance aid for studies, including vocational training, consisting in
student grants or student loans to persons other than workers, self-
employed persons, persons who retain such status and members of their
families.”
Equal Treatment for Workers
 Art.45 (2) T.F.E.U.: “Freedom of movement [for workers] shall entail the
abolition of any discrimination based on nationality between workers of the
Member States as regards employment, remuneration and other conditions
of work and employment.”
 Art.45 (3) T.F.E.U.: entails right
a) to accept offers of employment actually made;
b) to move freely within territory of M.S. for purpose;
c) to stay in M.S. for purpose of employment in accordance with
provisions governing employment of nationals of that State laid
down by law, regulation or administrative action;
d) to remain in territory of M.S. after having been employed in that
State, subject to conditions which shall be embodied in regulations to
be drawn up by Commission.
Eligibility for Employment

 Regulation 492/2011 art.1 (1): “Any national of a Member State,
irrespective of his place of residence, have the right to take up an activity as
an employed person, and to pursue such activity, within the territory of
another Member State in accordance with the provisions laid down by law,
regulation or administrative action governing the employment of nationals
of that State.”
 Regulation 492/2011 art.3 (1) & (2).
 But art.3 (1) allows for language requirements – Groener (379/87)

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 Regulation 492/2011 art.4 (1) – Commission v France (167/73)
Public Service Proviso

 Art.45 (4) T.F.E.U.: Right to free movement “shall not apply to employment
in the public service”.
 What is “Public service”? Commission v Belgium (149/79): “direct or
indirect participation in the exercise of powers conferred by public law and
duties designed to safeguard the general interests of the State...”
 Commission v France (307/84)
 Commission v Italy (225/85)
 Commission Notice [1988] O.J. C72/2
Conditions of Employment
 Regulation 492/2011 art.7 (1): “A worker who is a national of a Member
State may not, in the territory of another Member State, be treated
differently from national workers by reason of his nationality in respect of
any conditions of employment and work, in particular as regards
remuneration, dismissal, and, should he become unemployed, reinstatement
or re-employment.”
 Ugliola (15/69)
 Sotgiu (152/73)
 Kobler (C-224/01)
Social and Tax Advantages

 Regulation 492/2011 art.7 (2): E.U. migrant workers enjoy same social &
tax advantages as national workers.
 What are “social and tax advantages” in Regulation 492/2011 art.7 (2)?
Even (207/78): “…all those advantages which, whether or not linked to a
contract of employment, are generally granted to national workers
primarily because of their objective status as workers or by virtue of the
mere fact of their residence on the national territory.”
 Cristini (32/75), Reina (65/81), Hoecks (249/83), Deak (94/84), Frascogna
(157/84), Castelli (261/83), O’Flynn (C-237/94)
 Family Members? Inzirillo (63/76), Lebon (316/85)
Educational Provision
 Study for E.U. Migrant Workers
- Regulation 492/2011 art.7 (3): Workers shall “by virtue of the same right
and under the same conditions as national workers, have access to training
in vocational schools and retraining centres.”
- Concept of “vocational school”? Lair (39/86)
- Access to other forms of education? Regulation 492/2011 art.7 (2),
Matteucci (235/87), Franscogna (157/84)
- Maintenance grants?
- Directive 2004/38 art.7 (3) (d)
 Study for Children of Migrant Workers
- Regulation 492/2011 art.10
- Echternach (9/74) & Casagrande (9/74)

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Freedom of Establishment – Art. 49 TFEU

 Art.49 T.F.E.U.: “Restrictions on the freedom of establishment of nationals
of a Member State in the territory of another shall be prohibited.”
 Involves:
a) ability to take up & pursue activities as self-employed person
(exercised by natural persons) – Jany (C-268/99);
b) ability to set up & manage companies/firms (exercised by
natural & legal persons);
c) ability to set up agencies, branches or subsidiaries (exercised
legal persons).
 Firms and Companies – art.54 T.F.E.U.
 Non-discrimination – Reyners v Belgium (2/74)
 Non-discriminatory restrictions & rules of professional conduct – Gebhard
(C-55/94) –“such measures liable to hinder or make less attractive”
freedom of establishment must:
a) be applied in non-discriminatory manner;
b) be justified by imperative reason relating to public interest;
c) be suitable for securing objective pursued;
d) not go beyond what is necessary in order to attain it.
Mutual Recognition of Qualifications – Case Law

 Art.53 T.F.E.U. provides Council issue Directives for mutual recognition of
degrees, certificates & other evidence of formal qualifications.
 Recognition of foreign qualifications been required by obligation to remove
restrictions on freedom of establishment in art.49 T.F.E.U.
 Thieffry (71/76)
 Vlassopoulou (C-340/89): National authorities must:
1) consider education & training received by holder of qualifications &
2) Compare knowledge & skills acquired with those required by
domestic qualifications. If equivalent, host M.S. must recognise.
Mutual Recognition of Qualifications – Directive 2005/36

 Directive 2005/36 applies to all M.S. nationals wishing to practise regulated
profession in M.S. other than that in which they obtained professional
qualifications, on either self-employed or employed basis.
 Directive 2005/36 art.13: When access to or pursuit of regulated profession
in host M.S. is contingent upon possession of specific qualifications,
competent authority shall permit access to & pursuit of that profession,
under same conditions as apply to nationals, to applicants possessing
attestation of competence or evidence of formal qualifications required by
another M.S. in order to gain access to & pursue that profession.
 Attestations of competence or evidence of formal qualifications:
1) those issued by competent authority in M.S., designated in
accordance with legislative, regulatory or administrative provisions
of M.S.
2) Those attesting level of professional qualification at least equivalent
to level immediately prior to that required in host M.S.

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 Directive 2005/36 art.14: Host M.S. can make recognition of qualifications

subject to applicant’s completing compensation measure (aptitude test or
adaptation period of maximum of 3 years) if:
1) Training is one year shorter than that required by host M.S.; or
2) Training received covers substantially different matters to those
covered by evidence of formal training required in host M.S.; or
3) Profession as defined in host M.S. comprises one or more professional
activities which do not exist in corresponding profession in
applicant’s home M.S. and there is need for specific training in order
to be able to carry out these professional activities. (e.g. solicitor and
advocacy in higher courts).
 Directive 2005/36 art.4 (1): recognition of professional qualifications by
host M.S. allows beneficiary to gain access in that M.S. to same profession as
that for which he is qualified in home M.S. & to pursue it in host M.S. under
same conditions as nationals.
Freedom to Provide Services – Art 56 TFEU

 Art.56 T.F.E.U.: prohibition of restrictions on freedom to provide services by
individuals in M.S. other than that in which they are established.
 Service provider need not move from home M.S. – Alpine Investments B.V.
(C-384/93)
 What Activities Constitute “Services”? Art.57 T.F.E.U.: a) normally provided
for remuneration; b) include activities of industrial character; commercial
character; craftsmen; & the professions; c) temporary pursuit of activity in
M.S. where service is provided.
 Right to receive services - Cowan v Le Tresor Public (186/87)
 Restrictions on Freedom to Provide Services – art.56 T.F.E.U. provides for
elimination of discrimination but also abolition of restrictions – Van
Binsbergen (33/74) – national restrictions on provision of services will be
compatible with art.56-57 T.F.E.U. provided such rules are
 adopted in pursuance of legitimate public interest which is
compatible with aims of E.U.;
 applicable to all persons & undertakings operating in State where
service is provided; &
 are objectively justified – genuine need for restriction, appropriate
to achieve aim & proportionate (i.e. no more restrictive than
necessary).
Free Movement for Union Citizen Lawyers
 Freedom of establishment governed by Directive 98/5

- Art.2: grants any lawyer right to practise under home-country
professional title in another M.S. as salaried lawyer on
permanent basis.
- Art.3: requires lawyers to register with appropriate regulatory body in host
M.S. on basis of registration in home M.S.
 Freedom to provide services governed by Directive 77/247

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- Places obligation on M.S. to recognise right of practising lawyers from other

M.S. to provide services for temporary basis on territory. Based on mutual
understanding training of lawyers is rigorous in every M.S.
- Art.4 (1): dispenses with residence & registration for representation of
client in legal proceedings.
Derogations from Right to Free Movement
 Union law provides that M.S. may in certain circumstances restrict/deny

right of free movement.
 All T.F.E.U. Treaty provisions on free movement of persons subject to
derogations on grounds of public policy, public security and public health.
 Thus, right to free movement of workers, etc. subject to limitations justified
on grounds of public policy, public security and public health.
 Articles fleshed out by Directive 2004/38 art.27, repealing Directive
64/221
 Directive 2004/38 art.27 (1): M.S. may restrict freedom of movement of
Union citizens & family members, irrespective of nationality, on grounds of
public policy, public security or public health. Grounds not to be invoked to
serve economic ends.
 Directive 2004/38 art.27 (2):
 Proportionality
 Personal conduct
 Previous criminal convictions
 Genuine, present & sufficiently serious threat
 Personal Conduct
- Van Duyn (41/74) – “socially harmful” behaviour.
- Bonsignore (67/74) – personal conduct must relate exclusively to
individual concerned & present/future risk posed.
 Previous Criminal Convictions
- Directive 2004/38 art.27 (2): previous criminal convictions not in
themselves constitute grounds for exclusion/expulsion.
- Bouchereau (30/77), Donatella Calfa (C-348/96)
 Genuine, Present and Sufficiently Serious Threat
- Rutili (36/75) – Where restrictive/repressive measures not imposed on
own nationals for certain conduct, such conduct cannot be genuine &
serious threat & used to justify expulsion of non-nationals.
- Adoui & Cornuaille v Belgium (115 & 116/81) cf. Van Duyn
Internal Situations
 Wholly internal situations? – Saunders (175/78)
 Can free movement provisions be used to enable T.C.N. family members
right of residence in one’s home M.S.? – Morson & Jhanjan (35 & 36/82) &
Uecker & Jacquet (C-64 & 65/96)
 But, Singh (C-370/90) & Akrich (C-109/01)
 Can Union citizen, having exercised right to free movement & resided in
another M.S., invoke E.U. law against his own M.S. on re-entrance in order to
claim equal treatment on same basis as own fellow nationals? D’Hoop (C-
224/98)

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 Can Union citizen, having exercised right to free movement & resided in
another M.S., invoke E.U. law against his own M.S. on re-entrance in order to
have qualifications gained in another M.S. recognised in his/her own M.S.?
Knoors (115/78)
Topic 6 – Citizenship of the European Union
The Nature of Citizenship

 Citizenship establishes & represents link between a group of individuals and
political community, typically the nation-State.
 This link is created through:
1) Exercise of civil, political & social rights
2) Legal belonging to group (normally by nationality)
3) Cultural belonging group (shared language, values, history, heritage,
customs, etc.)
 Citizenship of E.U. has challenged relationship between citizenship & States.
 Citizenship generally concerned participation in & belonging to State as
polity/political community.
Creation of EU citizenship
 Introduction of citizenship “underscores the fact that the Treaty of Rome is
not concerned solely with economic matters, as is also plainly demonstrated

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by the change of name from the European Economic Community to the

European Community. For the first time, the Treaty has created a direct
political link between the citizens of the Member States and the European
Union such as never existed with the Community, with the aim of fostering a
sense of identity with the Union.” (Report of the Commission on the
Citizenship of the Union COM (93) 702).
EU Citizenship Treaty Provisions
 Formal constitutionalisation of European Citizenship in E.C. Treaty by

Treaty of Maastricht 1992.
 Ex-art.17-22 E.C., now art.20-25 T.F.E.U.
 Art.9 T.E.U.: “In all its activities, the Union shall observe the principle of the
equality of its citizens, who shall receive equal attention from its
institutions, bodies, offices and agencies.”
 Art.20 (1) T.F.E.U. (ex-art.17 (1) E.C.): “Citizenship of the Union is hereby
established. Every person holding the nationality of a Member State shall
be a citizen of the Union. Citizenship shall complement and not replace
national citizenship.”
Political Rights
 Art.22 T.F.E.U. confers right to vote & stand for municipal elections &
elections to European Parliament under same conditions as nationals of
M.S.
 Both new rights in 1992 but previously existed disparately under national
laws of M.S.
 Why not establish uniform E.U. rules on voting & standing at least for
European elections?
E.U. citizenship only significant if results in non-nationals participating actively &
exercising rights in art.22 T.F.E.U. Turnout is generally low, rate of participation
of non-nationals very low.
 Why not grant E.U. citizens to right to participate in national elections,
most significant political decision-making in M.S.?
 Why not develop European political parties operating on transnational
level?
 Recognition of rights of association & assembly? Right to associate in form
of political parties operating operating at European level to defend rights?
 Abolition of public sector proviso in art.45 (4) T.F.E.U. enabling E.U.
citizens to hold high office or to exercise duties affecting national interests
of M.S.?
 Why not bring E.U. Charter of Fundamental Rights into Citizenship Title of
T.F.E.U.?
 Art.24 T.F.E.U. confers right to petition European Parliament & to submit
complaints to Ombudsman. Also Citizen’s Initiative (introduced by Treaty
of Lisbon 2007)
 Right to petition Parliament not new within Union framework.
 Both rights not exclusively attached to condition of E.U. citizen, but rather
general right, including for T.C.N.s.

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 In case of petitions to Parliament, citizen only act for protection of own

interests.
 Ombudsman not legally entitled to become involved with maladministration
carried out by national authorities when implementing Union law.
Civil Rights
 Art.23 T.F.E.U. confers entitlement to protection by diplomatic or

consular authorities of any M.S., on same conditions of nationals of M.S., in
territory of 3rd country in which M.S. of which E.U. citizen is national is not
represented.
 New right in 1992 but possibility existed under European Convention on
Consular Functions 1967
 Citizen not entitled to protection of all M.S. in any 3rd country. Only
protection where own M.S. not represented.
Direct Effect of Art 21 (1) TFEU?

 Art.21 (1) T.F.E.U.: “Every citizen of the Union shall have the right to move
and reside freely within the territory of the Member States, subject to the
limitations and conditions laid down in this Treaty.”
 Baumbast (C-413/99) – “As regards, in particular, the right to reside
within the territory of the Member States under art.21 (1) T.F.E.U., that
right is conferred directly on every citizen of the Union by a clear and
precise provision of the T.F.E.U”
 Right is subject to limitations & conditions laid down by T.F.E.U. &
secondary measures designed to give it effect – applied in accordance with
general principles of Union law, proportionality.
 Zhu and Chen (C-200/02) – “…A requirement as to the origin of the
resources which, not being necessary for the attainment of the objective
pursued, namely the protection of the public finances of the Member States,
would constitute a disproportionate interference with the exercise of the
fundamental right of freedom of movement and of residence upheld by
art.21 (1) T.F.E.U.
Analysis of EU Citizenship Rights

 O’Keefe: Maastricht citizenship provisions do not add substantially to what
already existed in Community/Union law.
 They reiterate existing rights (freedom of movement and residence & right
of petition to Parliament).
 Or they generalise rights already existing, albeit disparately, in national
laws of M.S. (voting and standing rights in European & local elections).
 New right of diplomatic & consular protection. Already envisaged under
the European Convention on Consular Functions 1967.
 New right of complaint to Ombudsman. Like right of petition, is effectively
shared with T.C.N.s and thus is not really distinctive of status of Union
citizen.
Potential for Rights of EU Citizenship

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 O’Keefe (1994): “The importance of the T.E.U. citizenship provisions lies not
in their content rather in the promise they hold out for the future. The
concept is a dynamic one, capable of being added to or strengthened,
but not diminished…The Court may fashion constitutional guarantees
from the citizenship provisions through its case law.”
 A-G. Leger in Boukhalfa (C-214/94): “It is for the Court to ensure that the
full scope of citizenship is attained.”
Right to Equal Treatment

 Court developed new radical, comprehensive right of equal treatment for
Union citizens lying outside formal terms of art.20-25 T.F.E.U.
 Martinez Sala (C-85/96) – “It follows that a citizen of the European Union…
lawfully resident in the territory of the host Member State, can rely on
art.18 T.F.E.U. in all situations which fall within the material scope of Union
law.”
 Liberal approach taken by Court as to scope of equal treatment.
 Trojani (C-456/02)
 Directive 2004/38 art.24 (1): “…all Union citizens residing on the basis of
this Directive in the territory of the host Member State shall enjoy equal
treatment with the nationals of that Member State within the scope of the
Treaty…”
 Directive 2004/38 art.24 (2): “…the host Member State shall not be
obliged to confer entitlement to social assistance during the first three
months of residence…nor shall it be obliged, prior to the acquisition of
permanent residence, to grant maintenance aid for studies, including
vocational training, consisting in student grants or student loans…”
Personal Scope of Equal Treatment

 Recently, M.S. have experienced controversial national debates around issue
of “welfare tourism”.
 Court has responded with more restrictive approach.
 Dano (C-333/13) – in order to claim social assistance benefits on equal
basis with nationals under art.18 T.F.E.U. & Directive 2004/38 art.24,
E.U. citizen must be lawfully resident under terms of Directive & not
merely national law.
Mere possession of lawful national residence no longer sufficient to claim right of
equal treatment with nationals.
Material Scope of Equal Treatment

 Grzelczyk (C-184/99) – “Those situations include those involving the
exercise of the fundamental freedoms guaranteed by the Treaties and those
involving the exercise of the right to move and reside freely in another
Member State, as conferred by art.21 T.F.E.U.”
 Where national measure affects migrant citizen exercising rights to move &
reside, this is enough to bring measure within material scope of Treaty.
 Garcia Avello (C-148/02) – Belgian law on registration of surnames?
Need for a Real Link

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 Collins (C-138/02) – “It may be regarded as legitimate for a Member State

to grant [jobseeker’s] allowance only after it has been possible to establish a
genuine link exists between the person seeking the work and the
employment market of that State.
 Right to equal treatment to jobseeker’s allowance under art.18 & 20 T.F.E.U.
may beconditional on residence requirement :
1) justified on basis of objective considerations
2) that are independent of nationality and
3) proportionate to legitimate aim.
 Vatsouras & Koupatantze (22 & 23/08)
 Bidar (C-209/03) – condition for British student loan was “settled status”
to gain student loan. Justified to demonstrate degree of integration into
society?
 Ioannidis (C-258/04) – condition for Belgian tideover allowance was
completion of secondary education in Belgium. Justified to show real link
with employment market?
 Gottwald (C-103/08) – condition for Austrian motorway toll free disc for
disabled drivers was residence in Austria. Justified to show real link with
society?
 Commission v Netherlands (C-542/09) – condition for funding for higher
education pursued outside Netherlands was lawful residence in Netherlands
for 3 out of 6 years preceding enrolment at educational establishment
abroad. Justified to show real link with society?
 Commission v Austria (C-75/11) – condition for Austrian student travel
discounts was belonging to family in receipt of Austrian family allowance.
Justified to show real link with society?
 Prete (C-367/11) - condition for Belgian tideover allowance was
completion of 6 years’ studies in Belgian educational establishment. Justified
to show real link with employment market?
Real Link and Direct Discrimination

 Forster (C-158/07) – Court held Dutch condition of 5 years’ prior residence
in territory of host M.S. for award of maintenance study grant to be justified
and proportionate.
 Condition did not apply to Dutch students. Direct discrimination?
 Nationality is “real link” with M.S. so preferential treatment for nationals is
not always discrimination.
 Doubtful to apply to matters not covered by Directive 2004/38 art.24 (2).
Real Link to Home State

 Tas-Hagen (192/05) – condition for Dutch benefit for civilian war victims
was residence in Netherlands. Justified to show solidarity with Netherlands?
Dutch applicant resided outside Netherlands.
 Morgan & Bucher (C-11 & 12/06) – condition for German education &
training grants in another M.S. was to have followed higher education for at
least 1 year in Germany? German applicants followed higher education
courses in other M.S.

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 Stewart (C-503/09) – condition for British incapacity benefit was

residence in U.K. for minimum period of 26 weeks within 52 weeks of having
made claim. British applicant resident in Spain.
 Thiele (C-220/12) – condition for German study abroad finance was
permanent residence in Germany. German applicant resident in Turkey.
 Martens (C-359/13) – condition for Dutch study abroad finance was
residence in Netherlands for 3 out of 6 years prior to enrolment. Dutch
applicant living in Belgium did not fulfil rule.
Indirect Discrimination and Objective Justification
 Bressol (C-73/08) – Belgian rule requiring universities of French-speaking

communities to limit numbers of students not resident in Belgium for
medical courses.
 Argued measure necessary to ensure quality & continuing provision of
medical care within French-speaking community in Belgium & to prevent
shortage of qualified medical personnel. Also to protect homogeneity of
higher education system.
 Justifications to indirect discrimination accepted by Court?
Analysis of Rights
 Minimalist rights conferred by Treaty in art.21-24 T.F.E.U.
 Significant right to equal treatment developed by Court but narrowed by
ability of M.S. to require Union citizens to show “real link” (welfare tourism
concerns) or to argue other objective justifications
 Most rights not accessible until citizen exercises right to free movement or
moves outside territory of M.S.
 Union citizenship not material until outside one’s own M.S. territory?
 Stronger E.U. citizenship if Union citizens able to exercise more substantive
citizenship rights within own territories?
How to Become a Union Citizen

 Art.20 (1) T.F.E.U. (ex-art.17 (1) E.C.): “Every person holding the nationality
of a Member State shall be a Union citizen.”
 Thus, inclusion within personal scope of Union citizenship is dependent
upon possession of nationality of 1 of M.S
 Conferral of nationality determined solely by national laws of each State –
fundamental principle of international law.
 Declaration on Nationality of a Member State 1992
 Micheletti (C-369/90) – “Determination of nationality rests within exclusive
competence of States, with due regard to Union law.”
 Rottman (C-135/08)
Direct Political Link with Union?

 “The Treaty created a direct political link between citizens of the Member
States and the E.U., such as never existed with the Community, with the aim
of fostering a sense of identity with the Union.” (Report of the Commission
on the Citizenship of the Union COM (93) 702)

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 Closa: “Citizenship of the Union is an indirect relationship between the

individual and the Union since the link which entitles individuals to the
enjoyment of rights is the link with a Member State (i.e. nationality).
Disparate Means of Acquiring Union Citizenship

 E.U. has no competence to direct M.S. as when & how to confer nationality
upon persons. No uniform rules across Union as to how nationality may be
granted.
 Thus, iniquities & differences exist in acquisition of Union citizenship due to
splintered & variegating laws on granting of nationality between M.S.
 Agreement between M.S. on common principles for granting of nationality?
Exclusionary Personal Scope of Union Citizenship

 By tying access to Union citizenship to possession of nationality of M.S.,
art.20 (1) T.F.E.U. denies possibility of extending Union citizenship to
T.C.N.s legally resident in Union.
 Kostakopoulou: There is an exclusionary personal scope of Union
citizenship, tied to nationalist tendencies, which “is difficult to justify from
a normative point of view, given that some T.C.N.s have lived their
whole lives within the territory of the Member States.”
 Exclusion for around 20.5 million T.C.N.s (4.1% of E.U. Population)
who lawfully reside on the territory of the MS.
Internal Situations and Union Citizenship

 Uecker and Jacquet (C-64 & 65/96) – free movement law only applies to
those who have moved to another M.S. Does not apply in wholly internal
situations.
 Zambrano (C-34/09) – “Art.20 T.F.E.U. precludes national measures which
have the effect of depriving citizens of the Union of the genuine enjoyment
of the substance of the rights conferred by virtue of their status as citizens
of the Union.”
 Dereci (C-256/11) – Union citizen must be in situation where “has, in fact,
to leave not only the territory of the Member State of which he/she is a
national but also the territory of the Union as a whole.”

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Topic 7 – Free Movement of Goods
Free Movement of Goods and the Internal Market

 Art.2 E.C. (now art.3 (2) T.E.U.): Objective of Union = creation of common
market, furthered now by E.M.U.
 Ex-art.3 E.C. – To be achieved, inter alia, by:
 prohibition of customs duties & quantitative restrictions,
 a common commercial policy,
 abolition of obstacles to free movement
 Art.26 T.F.E.U.: aim to ensure internal (common/single) market as
area without frontiers in which there is free movement of goods,
persons, services & capital.
 Free movement of goods (i.e. free trade area) = central to operation
of common/internal market. Aims to ensure imported goods not
placed at disadvantage by imposition of extra costs.
Elimination of Barriers to Trade

 In order to create common market in which there is free movement of
goods, require:
 Removal of pecuniary barriers – i.e. customs duties (art.28-30
T.F.E.U.) & discriminatory national taxation (art.110 T.F.E.U.).
Pecuniary = monetary or fiscal (tax, levy, etc.).

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 Removal of non-pecuniary barriers – i.e. quantitative restrictions

and measures having equivalent effect (art.34 T.F.E.U.). Non-
pecuniary = quotas, marketing & selling requirements.
Pecuniary Barriers to Trade – the abolition of Customs Duties and Charges

Having Equivalent Effect
Customs Union and Common Customs Tariff

 Art.28 T.F.E.U.: “The Union shall be based upon a customs union
which shall cover all trade in goods and which shall involve the
prohibition between Member States of customs duties on imports
and exports and of all charges having equivalent effect, and the
adoption of a common customs tariff in relations with third
countries.”
 Customs union
1) Internal aspect: prohibition of customs duties between M.S.
2) External aspect: incorporates common customs tariff – common
level of duty charged by all M.S. on goods from 3rd countries. Once 3rd
country goods have been subject to common customs tariff, goods in
free circulation across Union. Not subject to customs duties between
M.S.
 Art.30 T.F.E.U.: “Customs duties on imports and exports and charges
having equivalent effect shall be prohibited by Member States. This
prohibition shall also apply to customs duties of a fiscal nature.”
 2 types of prohibition in art.30 T.F.E.U.:
1) Customs duties
2) Charges equivalent to customs duties
Distinction between Customs Duties and C.E.E.s
 Customs duties: charges levied on goods – whether imports or exports – on
crossing of border.
 Charges Having Equivalent Effect: Commission v Italy (Re Statistical
Levy) (24/68) - charge having an equivalent effect to a customs duty is:
1) “Any pecuniary charge”
2) “Whatever its designation or mode of application”
3) “Imposed unilaterally on domestic or foreign goods by reason of the
fact that they cross a frontier”
Definition of “Goods”
 Commission v Italy (Re Export Tax on Art Treasures) (7/68)
- “The Commission considers that articles of an artistic, historic,
archaeological or ethnographic nature…fall under the provisions relating
to the customs union…This point of view is disputed by the defendant, which
considers that the articles in question cannot be assimilated to ‘consumer
goods or articles of general use’ and are not therefore subject to the
provisions of the Treaty which apply to ‘ordinary merchandise’.”
- “Goods” = products which:
1) can be valued in money and
2) are capable of forming the subject of a commercial transaction.

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Effect v Purpose of Charge
 Commission v Italy (Re Export Tax on Art Treasures) (7/68)

 Commission v Luxembourg (Re Import of Gingerbread) (2 & 3/62)
 Sociaal Fonds vor Diamantarbeiders (2 & 3/69)
 Commission v Italy (Re Export Tax on Art Treasures) (7/68): “Art.30

T.F.E.U. prohibits the collection in dealings between Member States of any
customs duty on exports and of any charge having an equivalent effect…
That provision makes no distinction based on the purpose of the duties and
charges the abolition of which it requires.”
Exceptions to the Art. 30 TFEU – Rule: Mandatory Inspections
 Commission v Germany (18/87) (Re Animal Inspection Fees) charges made

for mandatory inspection not C.E.E. provided:
 they do not exceed actual costs of inspections in connection with
which they are charged – Bauhuis v Netherland (46/76);
 the inspections in question are obligatory and uniform for all
products concerned in Union;
 they are prescribed by Union law or international law (Bakker
Hillegon (C-111/89)) in general interest of Union;
 they promote free movement of goods (in accordance with
derogations laid down art.36 T.F.E.U.).
Exceptions to the Art. 30 TFEU Rule: Charges Levied for a Service Provided
 Commission v Belgium (The Warehousing Case) (132/82) – Art.30 T.F.E.U.
not apply if court considers that “the charge in question is the consideration
for a service actually rendered to the importer and is of an amount
commensurate to that service.”
 Commission v Italy (Re Statistical Levy) (24/68)
 Bresciani v Amministrazione Italiana della Finanze (87/75)
Pecuniary Barriers to Trade – the Abolition of Discriminatory Taxation
Prohibition of Discriminatory Taxation

 Art.30 T.F.E.U. deals with pecuniary (fiscal) barriers at frontier.
 Art.110 T.F.E.U. deals with pecuniary barriers internally within M.S.
 Treaty not deprive M.S. power to levy internal taxes – M.S. power to choose
own tax measures.
 But taxation unlawful if discriminates against imported products & is,
therefore, protective of domestic products.
 Purpose of art.110 T.F.E.U. = to prevent objectives of art.28-30 T.F.E.U. being
undermined by national taxes favouring domestic goods.
 Art.28-30 T.F.E.U. be of little use if State able to disadvantage non-domestic
products by levying discriminatory internal taxes against them.

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Art. 110 (1) TFEU – Similar Products

 Art.110 (1) T.F.E.U.: “No Member State shall impose, directly or indirectly,
on the products of other Member States any internal taxation of any kind in
excess of that imposed on similar domestic products.”
 When levying taxes, M.S. must not discriminate against similar non-
domestic goods, either directly or indirectly.
Art. 110 (1) TFEU – Direct Discrimination

 On face of measure, there is less favourable treatment of imported good. No
express defences. M.S. must remove discriminatory element & equalise tax.
 Imported product is taxed at higher rate than domestic product – Haahr
Petroleum (C-90/94).
 M.S. uses different methods for calculating tax for domestic & imported
goods – Bobie (127/75).
 Different conditions under which tax is paid or tax relief is granted for
imported products – Commission v Ireland (Re Excise Payments) (55/79).
Art 110 (1) TFEU – Indirect Discrimination?

 On face of measure both domestic & imported product treated equally, but,
in reality, burden placed on imported good. No reference to origin of
product but in fact imposition of greater burden on import.
 Humblot (112/84) – French law imposed annual car tax. Criterion for
amount of tax to be paid was power rating of car. Below 16CV rating tax
increased gradually to maximum of FF1100. For cars above 16CV there was
flat rate of FF5000. There was no French car which was rated above 16CV,
therefore higher charge was borne only by those who had imported cars.
Art 110 (1) TFEU – Definition of “similar”

 Prohibition of internal taxation discriminating against similar domestic &
foreign goods.
 Fink-Frucht (27/67) (former view)
 Commission v France (Re French Spirits) (168/78) – Do products have
similar characteristics & meet same need from point of view of consumers?
Should take into account composition & physical characteristics of products,
methods of production & consumer perception & usage of products.
 John Walker Ltd. v Ministeriet for Skatter (243/84)
 Commission v Italy (Re Bananas) (184/85)
Art. 110 (2) TFEU – Products in Competition

 Art.110 (2) T.F.E.U.: “No Member State shall imposed on the products of
other Member States any internal taxation of such a nature as to afford
indirect protection to other products.”
 If goods not sufficiently similar for art.110 (1) T.F.E.U., Court examine
whether in competition with each other under art.110 (2) T.F.E.U. &
whether domestic goods benefit from indirect protection.
Art 110 (2) TFEU – Indirect Protection

 Commission v United Kingdom (Re Beer and Wine) (170/78): Court adopted
2-stage test:

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1) Is there a competitive relationship between the products? - May

products be substituted for one another for purpose consumer has in
mind? “Test of substitutability”. Beer & “lightest & cheapest”
varieties of wine = both are product of natural fermentation & can
be used for same purposes. Both thirst-quenching drinks,
appropriate for meals.
Is the tax system, in fact, protective of domestic products? Imported wine subject to
additional tax burden of 100% by reference to alcoholic strength & 400% by
reference to alcoholic volume. “The effect of the United Kingdom tax system is to
stamp wine with the hallmarks of a luxury product.”
Significant effect on difference in selling prices.
Relationship between Art 110 (1) and (2) TFEU

 Sometimes Court takes more “global approach” to two paragraphs:
“similar” & “in competition” almost same meanings.
 But presents problem as remedies under provisions are different.
 Art.110 (1) T.F.E.U. – tax must be equalised.
Art.110 (2) T.F.E.U. – protective effect must be removed, not necessarily needing
equalisation of taxes. In Commission v United Kingdom (Re Beer and Wine)
(170/78), Court did not require wine to be taxed at same rate as beer, merely
protection enjoyed by beer be removed so that products priced more fairly.
Chancellor of Exchequer lowered tax on wine & raised it on beer.
Objective Justification
 Under art.110 (1) T.F.E.U., direct discrimination on grounds of origin can
never be justified.
 But indirect discrimination under art.110 (1) & (2) T.F.E.U. may be
objectively justified.
 Chemial Farmaceutici v D.A.F. (140/79): Tax policy:
 must pursue wider economic aims compatible with Treaty.
 must treat both domestic & imported goods in same way in law.
 Commission v France (196/85)
Relationship between Art 30 and 110 TFEU

 2 sets of Articles = mutually exclusive.
 Art.28-30 T.F.E.U. relate to charges levied as result of goods crossing border.
Art.110 T.F.E.U. prevents discrimination against goods once entered
internal system of taxation.
 Sometimes Court decides charge of levy taken at border not C.E.E. under
art.30 T.F.E.U. but tax under art.110 T.F.E.U. – Denkavit (29/87).
 What happens where imported State not make imported product (or very
little of it) but imposes a tax on it nonetheless? Tax under art.110 T.F.E.U.?
Or charge under art.30 T.F.E.U.? Co-Frutta (193/85).
 Sometimes State chooses to use money to benefit only particular group or to
make selective refund of tax or - Capolongo (77/72) & Fratelli Cucchi
(77/76).

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Non-pecuniary barriers to trade – The Prohibition of Quantitative

Restrictions and Measures having Equivalent Effect
The Elimination of Non-Pecuniary Barriers to Trade

 Art.30 & 110 T.F.E.U. prohibit pecuniary barriers to trade – either at the
frontier or internally within M.S. Prevent M.S. from imposing protectionist
fiscal or tax measures.
 However, States may seek to place their goods at a competitive advantage
by imposing quotas or measures having equivalent effect on imports.
 Art.34 & 35 T.F.E.U. prohibit non-pecuniary barriers to trade. Prevent M.S.
from imposing protectionist administrative rules/practices.
 Art.34 T.F.E.U.: “Quantitative restrictions on imports and all measures
having equivalent effect shall be prohibited by Member States.”
 Art.35 T.F.E.U.: Same rule applying to exports.
What is a Quantitative Restriction?

 Geddo (2/73)
 R v Henn and Darby (34/79)
 Commission v Italy (7/61)
 Commission v France (C-1/00)
 Can be justified under art.36 T.F.E.U.
What are M.E.Q.R.s?

 Dassonville (8/74)
 M.E.Q.R. = “all trading rules enacted by Member States which are
capable of hindering, directly or indirectly, actually or potentially
intra-Community (now Union) trade.”
 No requirement of discriminatory intent, restrictive effect on intra-
Union trade as whole will suffice.
M.E.Q.R.s – Distinctly Applicable Measures

 Measures that intentionally discriminate, either directly or indirectly,
between domestic & imported product, subjecting imported good to less
favourable treatment than domestic good, thereby placing imported good
at competitive disadvantage.
1) Import & Export Restrictions: Commission v Italy (154/83), Rewe-
Zentralfinanz (4/75)
2) Promotion or Favouring of Domestic Products: Commission v
Ireland (249/81), Commission v United Kingdom (207/83)
3) Price-Fixing: Openbaar Ministerie v Van Tiggele (82/77)
4) Measures which Make Imports More Difficult or Costly: Schloh v
Auto Controle Technique (50/85)
5) Measures which Make Imports More Difficult by Discriminating
between Different Channels of Trade: Dassonville (8/74)
M.E.Q.R.s – Indistinctly Applicable Measures

 Measures that apply both to domestic & imported goods which, while not
discriminating between them based on country of origin, nevertheless

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create real barriers & have greater restrictive effects for imported product,
thereby placing imported good at competitive disadvantage.
 Cassis de Dijon (120/78)
 Rau (261/81)
 Deserbais (286/86)
Summary of M.E.Q.R.s
 Distinctly Applicable Measure: rule that intentionally disadvantages or
discriminates either, directly or indirectly, against imported product by
reason of country of origin. Overtly or covertly subjects imported product to
less favourable treatment.
 Indistinctly Applicable Measure: rule applying both to imports and domestic
products alike, but that nevertheless has greater restrictive effect on
imported product, making it more difficult/costly for imported product to
get onto market.
Cassis de Dijon (120/78) – Indistinctly Applicable Measures

 The Doctrine of Mutual Recognition
- “There is no valid reason why, provided that they have been lawfully
produced and marketed in one of the Member States, alcoholic beverages should
not be introduced into any other Member State.” (para.14).
- Once goods have been lawfully produced in 1 M.S., they should be allowed
into any other M.S., without being subject to any further conditions.
 The Mandatory Requirements (Rule of Reason)
- “Obstacles to movement within the Community (now Union) resulting from
disparities between the national laws relating to the marketing of the products in
question must be accepted in so far as those provisions may be recognised as being
necessary in order to satisfy mandatory requirements relating in particular to the
effectiveness of fiscal supervision, the protection of public health, the fairness of
commercial transactions and the defence of the consumer.” (para.8)
 The Mandatory Requirements (Rule of Reason)
- What does this mean? Certain indistinctly applicable measures may be
justified if they fulfil one of the mandatory requirements.
- In order for an indistinctly applicable measure to be justified, it must:
1) satisfy one of the mandatory requirements – e.g. protection of public
health, fairness of commercial transactions, defence of consumer,
protection of environment, etc. Non-exhaustive list.
2) respect the principle of proportionality – i.e. measure should not be
any more than is necessary to fulfil mandatory requirement.
 Cassis (120/78)
 Rau (261/81)
 Commission v Germany (178/86)
Indistinctly Applicable Dual Burden Rules

 Rules relating to goods themselves.
 Rules normally affecting standards & marketing of product (e.g. size,
composition, labelling, etc.).

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 So-called as imported product placed under dual burden both by producing

& importing State, therefore subject to greater restriction than domestic
good.
Indistinctly Applicable Equal Burden Rules

 Rules prohibiting/restricting selling arrangements.
 Measures impose no additional burden on import, affecting domestic &
imported products equally.
 Measures that may have impact on overall volume of trade, but no greater
impact on imports than domestic good.
Indistinctly Applicable Equal Burden Rules Caught by Art. 34 TFEU?

 Do indistinctly applicable equal burden rules fall inside/outside scope of
art.34 T.F.E.U. (given seemingly no less restrictive effect on imported good)?
 Former Approach: Cinetheque (60 & 61/84), Torfaen B.C. v B & Q
plc. (145/88)
 Current Approach: Keck & Mithouard (C-267 & 268/91)
 Court in Keck held national measures prohibiting or restricting selling
arrangements do not infringe art.34 T.F.E.U. (ex-art.28 E.C.) where:
 Those provisions apply to all affected traders operating within
national territory.
 They affect in same manner in law & in fact the marketing of
domestic products & those from other Member States.
“Selling Arrangements” as Dual Burden Rules?

 What if “selling arrangement” requires physical alteration of product?
 Mars (C-470/93)
 Familiapress (C-368/95)
 Can selling arrangements in form of advertisements have greater restrictive
impact on imported goods & be prohibited by art.34 T.F.E.U.?
 Leclerc (C-412/93)
 De Agostini (C-34-36/95)
Derogations under Art. 36 T.F.E.U

 Both distinctly & indistinctly applicable measures under art.34 T.F.E.U. may
be justified under art.36 T.F.E.U.
 N.B. Indistinctly applicable measures only can also be justified under the
Cassis de Dijon “rule of reason/mandatory requirements.”
 The provisions in art.34-35 T.F.E.U. shall not preclude prohibitions or
restrictions on imports & exports on the grounds of public morality; public
policy; public security; the protection of health and life of humans, animals
or plants; the protection of national treasures possessing artistic, historic or
archaeological value; or the protection of industrial and commercial
property.
 Such prohibitions or restrictions shall not however
1) constitute a means of arbitrary discrimination – Commission v U.K.
(Re. Import of Turkeys) (40/82) or
2) a disguised restriction on trade - Commission v U.K. (124/81).

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Art 34 TFEU Summary

1) Is measure quantitative restriction as defined in Geddo? If so, prohibited
under art.30 T.F.E.U. unless can be justified under art.36 T.F.E.U.
2) If not, is measure having equivalent effect to quantitative restriction as
defined in Dassonville?
3) If it is M.E.Q.R., is measure distinctly applicable measure? If so, prohibited
under art.34 T.F.E.U. unless can be justified under art.36 T.F.E.U.
4) If it is M.E.Q.R., is measure, alternatively, indistinctly applicable measure?
5) If it is indistinctly applicable measure, is it dual burden indistinctly
applicable measure or equal burden indistinctly applicable measure?
6) If it is dual burden indistinctly applicable measure will be prohibited under
art.34 T.F.E.U. unless can be justified either under Cassis “rule or
reason”/”mandatory requirements” or under art.36 T.F.E.U.
7) If it is equal burden indistinctly applicable measure will fall outside art.34
T.F.E.U. & not be unlawful where satisfies Keck criteria.

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Lecture notes - All lectures on EU law

European Law (Manchester Metropolitan University)

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Law of European Union Revision Notes

Topic 1 - Art. 267 TFEU: The Preliminary Rulings Procedure

What is Preliminary Rulings Procedure?

 Art.267 T.F.E.U.: National court, faced with question over interpretation or

What can be the Subject of a Preliminary Ruling?

The Preliminary Reference

What type of Court of Tribunal can refer?

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 Also, Italy’s Bar Council (Gebhard – C-55/94) & U.K.’s Immigration

Refusal to Accept References

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When to Refer – Permissive Jurisdiction

When to Refer – Mandatory Jurisdiction

No obligation to Refer – Precedent? Acte Clair?

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 C.I.L.F.I.T. (C-283/81) – No need to refer under art.267 (3) T.F.E.U. if:

 C.I.L.F.I.T. (283/81): interpretation is “so obvious as to leave no

Effects of Preliminary Ruling

 Art.267 T.F.E.U. (ex-art.234 E.C.) ruling is compulsory judgment &

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 Art.267 (4) T.F.E.U.: “If such a question is raised in a case pending

Reforms to the Preliminary Rulings Procedure

Importance of the Preliminary Ruling System to E.U Law

 Development of E.U. Law

Importance of the Preliminary Rulings System to E.U law

 Preserving the Uniformity of Law

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“The purpose of the preliminary ruling system is to prevent a body of case

 Judicial Review of E.U. Institutions

Topic 2 – The Primacy of EU law

Treaties and International Law

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 However, domestic legal effects of obligations = matter for national legal

Primacy and EU law

 Former E.C. Treaty made no mention of primacy of E.C. law.

What is Primacy of EU law?

Role of the CJEU

Van Gend en Loos (26/62)

 “...this Treaty is more than an agreement which merely creates mutual

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 Political Reasons for Primacy

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 Thus, E.U. monopoly laws, adopted prior to conflicting Italian nationalising

Internacionale Handelsgesellschaft (11/70)

Simmenthal (No.2) (106/77)

 “Every national court must, in a case within its jurisdiction, apply

Factortame (No. 2) (C-213/89)

Treaty of Lisbon and Primacy

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 Opinion of the Council Legal Service of 22 nd June 2007.

Primacy and the UK

Primacy and Other Member States

What is Direct effect?

 Direct effect is not same as direct applicability.