A 3 Manual EU Law Final Version (24.2.)

Twinning Project KS 08 IB JH 02
EU-LER “Legal Education System Reform”

An EU funded project, managed by the European Commission Liaison Office to Kosovo
Manual on practical
application
of EU Law
for Kosovo Judges and
Prosecutors
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Contents
.....................................................................................................................................................1
1. Part. European Law in General.......................................................................................5
1.1. Introduction................................................................................................................5
1.2. Basics of European Law............................................................................................5
1.2.1.What is European Law? 5
1.2.2.Primary Law (has priority) 6
1.2.3.Secondary law: Art. 288 TEU 6
1.3.3.Important basic principles of European Law in the practice of the national
courts 7
1.3.4.Interpretation methods in European law 13
1.3.5.Preliminary Ruling 14
1.3.6.The effect of directives and how to work with them 18
1.3.7.State liability for breach of EC law obligations 20
2. Part. Civil Law.................................................................................................................24
2.1. Procedure Law (in relation to Civil or Commerical Law)...................................24
2.1.1. Jurisdiction 24
2.1.2.Transmission 26
2.1.3.Taking Evidence 28
2.1.4.Enforcement 29
2.1.5.European small claims procedure 31
2.1.6.European order for payment procedure 33
2.2. Substantial law.........................................................................................................36
2.2.1.The law applicable to contractual obligations (“Rome I”) 36
2.1.2. The law applicable to non-contractual obligations (“Rome II”)..........................38
2.1.3. Summary of relevant EU legal instruments on certain fields...............................40
3. Part. Criminal Law..........................................................................................................63
3.1. European Arrest Warrant (EAW)..............................................................................64
3.1.1. Introductory remarks on the EAW 64
3.1.2.Form 67
3.1.3.How to fill the form 67
3.1.4.Remarks and explanations 67
3.2. European Evidence Warrant (EEW).....................................................................68
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3.2.1. Introductory remarks on the EEW 68
3.2.2.Form 71
3.2.4.Remarks and explanations including links 72
3.3. Freezing and Confiscation Order (FCO)...............................................................72
3.3.1. Introductory remarks on the FCO 72
3.3.2.Freezing Orders 73
3.3.3.Form 78
3.3.4.How to fill and transmit the form 78
3.3.5.Remarks and explanations including links 79
3.4. Mutual Assistance in Criminal Matters.................................................................79
3.4.1.Introductory remarks 79
3.4.2.Form 81
3.4.4.Remarks and explanations including links. 82
3.5. Joint Investigation Teams........................................................................................82
3.5.1.Introductory remarks 82
3.5.2.Form 83
3.5.4.Remarks and explanations 83
3.5.5.List of attachments: 84
3.5.6.Helpful links: 85
4. Part. Protection of Human Rights..................................................................................87
Introduction.........................................................................................................................87
Chapter I Presentation of the Convention and the Court....................................................87
Some principles of interpretation of the Convention by the Court 88
Chapter II Commentary per article...................................................................................89
Article 3 Prohibition of torture 89
Article 5 Right to liberty and security 90
Article 6 Right to a fair trial 95
Article 7 No punishment without law 104
Article 8 Right to respect for private and family life 105
Article 10 Freedom of expression 109
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Article 13 Right to an effective remedy 110
Article 14 Discrimination 111
Article 34 Individual applications 113
Useful sources: 114
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1. Part. European Law in General
1.1. Introduction
The intention of the recent manual is to approximate the rudiments as well as the most
relevant instruments of the EU-law to the recipients from the Kosovo Justice. This should be
the first step on an upward curve to prepare the judiciary and public prosecution for practical
use of those instruments once the Kosovo has become the full member of the European
Union. As the experience of all former candidate countries has showed it is necessary to
provide the judges, public prosecutors and the trainees with knowledge, which shall enable
them to apply the EU-law from the very first day of the EU-membership.
On the other hand this manual might not be for obvious reasons (need for transparency and
intelligibility) exhaustive and the information contained in it should be constantly widened
and deepened by the Kosovo side.
In the first descriptive part one should find the general information on EU law, in the second
part the presentation of the most relevant EU-civil law instruments. Finally in the third part
there is available summarised information concerning the respective criminal matter
instruments, which is to a considerable degree based on reports and opinions of the European
Commission.
In the attachments there are all relevant legal texts, explanatory reports and other official
documents enabling the users to gain a broader knowledge of the existing practice in relation
to the respective framework decisions and conventions.
1.2. Basics of European Law

1.2.1. What is European Law?
The content of the term “European Law” in a broader or narrower sense and the categories
“Union Law” and “Community Law” are controversial, yet in practice comparatively easy to
outline.
In the first place European Law comprises nowadays the main treaties called “Treaty on
European Union (TEU)” and the “Treaty establishing the European Community”, with the
latter to be known in future as the ‘Treaty on the Functioning of the European Union’
(TFEU). Both treaties are equal in their legal rank, are in force beside each other and
supplement one another, which is why they are going to be dealt with together.
The fundamental rights of the European Convention on Human Rights are part of the
European (Union) Law by now as well, which is expressly regulated in Art. 6 III of the Treaty
on European Union: “Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result from the
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constitutional traditions common to the Member States, shall constitute general principles of
the Union's law.” Via Art. 22 of the constitution of Kosovo, the European Convention is part
of the Kosovo law as well.
Important: The European Convention on Human Rights will be dealt with below in 4. Part.
1.2.2. Primary Law (has priority)

1.2.2.1. Treaties of the European Union establishing the Communities
and the European Union in their up-to-date version.
1.2.2.2. General Principles, particularly rule of law guarantees and basic
rights.
1.2.2.3. Community customary law.
1.2.2.4. The case-law of the court of the European Union.
Ad 1.2.2.1: These treaties are the core of European Law. They are often called the
constitution of the community. It is important that the Court of the European Union does not
have the competence to rule over their validity, they can only interpret their regulations. The
masters over the treaties are solely the member states.
Ad 1.2.2.2: The general legal principles are especially proportionality, protection of
confidence, rule of law, prohibition of arbitrariness, the right to legal hearing, the principle ne
bis in idem and the principles of effective legal protection as well as to a fair trial. These are
basic principles with immediate validity in European Law. As concerns the protection of basic
rights, it is to be noted that the treaties did not contain a written catalogue of such rights. This
is why the European Court of Justice (by now since the Lisbon Treaty: the Court of the
European Union) recurs to the European Convention on Human Rights, which has by now
become part of the acquis communautaire. Through this the Charta of Fundamental Rights has
become binding law (compare Art. 6 I TEU) – yet for Poland, the Czech Republic and the
United Kingdom the Charta is not valid.
Ad 1.2.2.3: The community customary law does not play an important role and does not need
to be elaborated here.
Ad 1.2.2.4: The case-law of the Court of the European Union is a very essential and
important source of European law. Here it has to be observed that this court is the only
authentic source of interpretation of European law, which is the reason why national courts
are allowed or in certain cases even obliged to refer their questions and difficulties with
European Law to the court in Luxemburg. The jurisdiction of the Court of the European
Union has to be observed by the national courts and is an indispensable source for
interpretation of the treaties, regulations and directives.
1.2.3. Secondary law: Art. 288 TEU

1.2.3.1. Regulations
1.2.3.2. Directives
1.2.3.3. Decisions
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1.2.3.4. Recommendations/Statements
Ad 1.2.3.1: Regulations are the equivalent to laws in national legislation. With their entering
into force they have to be observed by everyone. Regulations as a whole are binding and have
immediate effect in every member state (unless expressly ruled otherwise).
Ad 1.2.3.2: The effect of directives is more complicated, which is why we dedicate it a
separate chapter in this introduction. It can be stated here already that the essence of a
directive is a common aim agreed upon by the member states through their representatives in
the European Council which has to be transformed into legal reality within a given deadline,
usually 2 or 3 years. How the member states put the directives into the legal framework of
their system is left to them – the usual way is by passing a law with such subject.
Ad 1.2.3.3: These are decisions in particular cases. They are binding upon those to whom
they are directed.
Ad 1.2.3.4: Recommendations and statements are not of binding character. Nonetheless the
national courts are obliged to take them into account in their jurisdiction – as ruled by the
Court of the European Union.
1.3.3. Important basic principles of European Law in the practice of the national
courts
In the following we will enlarge upon some basic principles confining to those areas and rules
which are relevant for the practice of a national court.
1.3.3.1. The supremacy of European Law over national law

In General
The supremacy of European law over national law is a classical example of creation of law by
the Court of the European Union, hence this principle is not written down, neither in primary
nor in secondary law. The famous decision Costa ./. ENEL (judgement 6/64, of 15.06.1964)
was the first judgement in this direction, but we would like to illustrate this principle with a
more modern case, the judgement “Tanja Kreil”, C-285/98, 11.01.2000. The facts of this case
are as follows: A young German lady, 23 years of age applied for a job as electronic
technician with the German army in the year 1996, after she had read an advertisement in a
local newspaper. As the lady said later on after the verdict in an interview she did not
primarily want to become a soldier, but much more wished to get a good vocational training,
which this unit of the army was famous to offer. Ms. Kreil hoped for better chances on the
free job market after going through such training. The responsible army office declined her
application referring to a regulation in the German “law on soldiers” and the German
constitution which both governed that women are not allowed to serve with weapons in the
Germany army. Women were allowed to serve in medical units and units playing military
music, but they were excluded from all such entities that were obliged to carry weapons.
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Unfortunately these units were not attractive for Ms. Kreil, which is why she asked her lawyer
to sue the army for discriminating against her on the mere grounds of her sex. Tanja Kreil`s
attorney was of the opinion that these rules were in conflict with those of the directive 76/207,
dating from 09.02.1976, which governed the equal treatment of women and men concerning
the equal access to professions. Because the army office could not be convinced, Tanja Kreil
turned to the court in charge of such claims, which found themselves unable to solve this legal
question of a provision of the German constitution being in conflict with a European directive
and turned to the European Court of Justice in Luxemburg (now Court of the European
Union) with a preliminary ruling. The court in Luxemburg had to deal with several legal
problems in this case, but the least of them was the conflict between the directive and the
German constitution: The European Court of Justice governed that it is irrelevant, which rank
a national law has in the hierarchy within the national legal system. If it collides with binding
European law – the treaties, directives and regulations – then European law has supremacy, is
stronger and overrules national law.
Not long after this judgement the German constitution was changed and today women serve
in the German army all over the world, of course using the same weapons as their male
comrades-in-arms.
Effect of the collision with national law

The supremacy of European law over national law does not mean that the national law
becomes invalid. It just cannot be applied in cases where it collides with European law. But
for this first European law has to be applicable. This is not always the case, on the contrary:
most cases before national courts deal with merely national circumstances, own nationals,
national law, where Germans argue with Germans in Germany over German law, Hungarians
with Hungarians in Hungary over Hungarian law and so forth. But as soon as there is a
European reference point – e.g. goods, persons, services crossing a border between member
states, an implemented directive is the basis of the national rules or a regulation has to be
applied – European law has to be applied. A very well-known case may illustrate what this
rule of primacy in application means in practice: The case stems from Germany again, from
1984, referred to the European Court of Justice in this year – reference number: 178/84,
judgement form 12.03.1987 – and deals with the German purity law for beer. This rule was
created in 1516 and is the oldest rule on food in the world. It says that beer may not contain
other substances than water, hop, barley and yeast and is manifested in the German beer tax
law. Beverages containing other substances than the named – like lemonade or chemical
preservatives – were not admitted to the German market under the brand “beer”. Because of
this German provision, drinks from other countries like Belgium or France were not admitted
to Germany as long as they were called “beer”. The European Commission stated that
according to them this is a breach of European law, the freedom of goods, because beer
obviously falls under the category “goods”, it therefore should be allowed to circulate within
the member states, unless there was profound reason to confine this freedom. The government
of the Federal Republic of Germany argued before the court that beer is a kind of essential
aliment in their country; it needs specific protection, because a lack of purity could endanger
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the health of the consumers. The European Court of Justice accepted the argumentation that
the health of the consumers might justify a confinement of the freedom of goods; nonetheless
in this case the court stated a breach of European law, because – according to the court – it is
not eligible why the health of consumers in Germany should be in danger from drinking beer
mixed with lemonade, whereas Belgium or French beer-drinkers are still alive and not
damaged in their health form drinking such beer. Therefore the Court of Justice stated an
infringement upon European law by the German regulation of the beer tax law.
The effect of this judgement is what interests us most here: As stated above, European law
has a primacy in the applicability of a national rule. It does not make the German law invalid.
Therefore the beer tax law could not be applied when there was a European reference point –
e.g. Belgium beer crossing the border to Germany -, but it was and has stayed in force, when
there was no European reference: German beer had and still has to be brewed in accordance
with the German beer tax law.
This case shows another aspect of European law one has to be aware of: the diverted
discrimination, meaning discrimination through a state against its own nationals. European
law can lead to the result that nationals are in a worse position than European foreigners,
because the latter are protected by European law, the nationals are not. The Court of Justice in
Luxemburg has governed that this is not a problem of European, but of national law. Austria`s
constitutional court has by now ruled that also the diverted discrimination is a breach of the
national principle of non-discrimination. Other courts may follow.
1.3.3.2. Examination of European law by national courts ex officio
The question whether European law has to be applied by national court in their own motion
without the parties referring to it has not been answered yet. Depending on the national
particularities in the civil procedural law, this question may not even arise: In Germany the
general attitude and the legal situation say that the parties only have to give the facts, on this
basis the court will examine the law and will give the solution on the basis of the regulations
of the law, in accordance with the old Roman law principles: da mihi factum, dabo tibi ius
(you give me the facts, I give you the law) or “iura novit curia” (the court knows the law). In
other countries like Hungary the parties, particularly when represented by lawyers, are
expected to make exact reference to the law. Here the question does arise whether the court
has to examine European law as well, even when the parties did not even mention it.
The European Court of Justice has not yet answered this question in such clarity, but seems to
be of the opinion that out of the obligation to loyalty towards the European Union, the courts
are to apply “of their own motion binding rules of law. ….. it is for national courts to ensure
the legal protection which persons derive from the direct effect of provisions of Community
law” - Judgement van Schijndel (C-430/93). Also the European Commission and the
European Parliament have stated in several communications that according to them, European
law has to be applied ex officio. This seems to be the right position considering that otherwise
the validity of European law stands at the disposition of the parties, cannot be allowed,
because this could and would lead to wantonness. For the practice this means that national
courts have to check in their cases whether there is an influence of European law and if so,
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they are obliged to apply this European regulation in their law-finding process. Condition for
this is that the national courts first realise that there is an impact of European law in the
concrete case, which can be extremely tricky for the judge in charge. European law therefore
means an enormous challenge for both courts and advocates.
1.3.3.3. All national institutions are bound by European law

An interesting question is who is bound, obliged to observe European law. Obviously those
are bound to abide by the law who is its addressee. This is not surprising, the same is true in
national law. European regulations generally bind everyone, because there are general rules
with immediate effect, the same as laws created by parliament in national law. Directives
have a very special effect, depending on whether they are implemented yet or not. This will
be subject of a separate chapter. The effect of the treaties is there again quite clear as well.
They bind all state-organs, no matter on what level and what the inner-state hierarchy and
structure may be.
The following case may illustrate this, the judgement is from 24.11.1982, reference number:
249/81, Commission against Ireland. The case is known by the name “Buy Irish”.
The Irish government had founded an association, which was financed part by the
government, part by the private sector. This association had the task to promote Irish products
for which they started several campaigns with the slogan “Buy Irish”, meaning the appeal to
the consumers to buy Irish goods – not foreign products. The Commission saw a breach of the
rule of the freedom of goods in this campaign, arguing that with this campaign foreign
producers were obstructed in selling wares there. The European Court of Justice followed this
view and held the Republic of Ireland responsible for this breach. According to the court, it
did not matter that the state was not the only factor, not the only promoter of this campaign. It
found it sufficient that the government took part in it, gave money and had initiated this
marketing strategy.
How far the binding of all state-organs can go became nowadays obvious in an Italian case,
C-388/01, judgement from 16.01. 2003, Commission ./. Italy, „Museums“. Here the European
Commission turned to Luxemburg because of the regulation of entrance fees in Italian
museums, for example the Doge`s palace in Venice or the Uffizi Gallery in Florence. In these
museums the rule was that Italians older than 60 years were allowed in free of charge,
whereas Non-Italians, no matter where they came from, were charged entrance. The European
Court of Justice had here to deal with the question whether this was a discrimination on the
grounds of nationality – which was obvious -, but also with the question whether this
discrimination was justified. The Court in Luxemburg rejects such fiscal consideration saying
otherwise any discrimination could be justified on financial reasons – unless the tax-payer
gets an immediate, detectable advantage from the tax, when there is a “coherence of the tax
system”. If there is not, the justification is not accepted. The European Court of Justice held
the museums responsible for the infringement and discrimination arguing that their supporting
institution is the self-government of the cities which are obviously endowed with state-power,
which is why they have to be treated like the state.
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Other examples of institutions equipped with state-power could be the local attorneys` bar in
charge of lawyers, a ministry, a library run by the self-government and so forth.
1.3.3.4. Third party effect of basic freedoms

General Principle
Generally speaking the basic freedoms in European law – free movement of goods; free
movement of capital; free movement of services; free movement of persons - have only effect
(as basic rights in most national constitutions) in the relation between the state and private
persons.
Exceptions:
aa. The former Art. 119 (now Art.157) – same remuneration for women and men for the same
work – was declared to be immediately applicable by the European Court of Justice. This was
declared in the very simple case of a Belgium stewardess who was paid less by her employer
than her male colleagues. In this case – called Defrenne II, reference number: 43/75,
judgement from 08.04.1976 – it was controversial whether a private person could found its
right on a provision of the treaty immediately. The Court in Luxemburg supported this view
because of the position and content of the provision within the treaty. Therefore private
persons can refer to this rule immediately, even in exclusively private relations.
bb. Concerning the other provisions the general view had been for a very long time that these
regulations do not have third party effect. This standpoint was shattered by two judgements
by the European Court of Justice that dealt with the effect of European law in the field of
sports.
The earlier of the two judgements - Walrave, reference number 36/74, from 12.12.1974 –
hardly attracted attention, the other one – “Bosman” judgement from 15.12.1995, reference
number: C-415/93 - wrote football history: Jean-Marc Bosman was playing for the Belgian
first division club Liège. When his contract expired, he was offered a new one by the same
club, but with essentially worse conditions giving him a salary of 800,- € per month. As Mr.
Bosman was father of two children, he had to decline this offer, since with such income he
found himself unable to keep up his family. He looked for a new club and found one in
France with the French second division club FC Dunkerque. Bosman himself was Belgian
citizen. His transfer failed, because the Belgian club missed to keep the deadline prescribed
by the rules of the UEFA – the European Football Association -, moreover the French club
was not inclined to pay the transfer fee – 300.000,- € - demanded for Bosman by the Belgian
employer. Bosman had to stay in Liège and sued his club, the Belgian Football Association
and the UEFA. The court in Liège turned to the European Court of Justice.
The first question the court had to deal with was whether European law is applicable in sports
at all, because it was argued, sports is culture and culture belongs to the only competence of
the member states. The European Court of Justice did not approve of this view and
categorised Bosman as an ordinary employee who was playing football for his money, thus
came to apply the freedom of workers as part of the right to free movement of persons in the
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sense of ex-Article 39, now Article 45. Another problem was that the rules Bosman protested
against here were not made by the state, but by a private association. The European Court of
Justice decided – similar to the case Walrave – that employees can similarly be affected by
private regulations that can govern their lives to a large extent. For them it did not make a
difference whether they are restricted in their rights by private entities or by the state, which is
why they need to be protected in a similar way. This protection would be guaranteed by
applying the regulations of the treaty to them, which the European Court of Justice did.
Due to this Bosman-jurisdiction the formula has spread that private entities are addressees of
Community Law if they are endowed with similar power over individuals as states are in a
certain respects which affects the individuals.
cc. Discriminations on the grounds of nationality, sex, race or ethnic origin are forbidden.
(a) The general non-discrimination rule as governed by Art. 12 (now Art. 18) deals with the
discrimination on the grounds of nationality. According to that all discriminations upon this
criterion are forbidden, no matter whether they are open or hidden, for example in a
discrimination case because of the residence of an individual. Beyond the application of the
treaty privates will be allowed to discriminate against others or, to put in other words, to
decide who to deal with and who not to deal with. Member states are not free to do so; for
them any kind of discrimination against other nationals is a taboo.
(b) The ban on discrimination on grounds of sex can be found in the treaty in Art. 157, which
forbids unequal remuneration for equal work, because of the sex of the employee. This
provision has direct effect between private entities and their employees, see above.
Between the European law in this area the directive 76/207 and the directive 2002/73 should
be mentioned, as they govern the equal access to employment, vocational training and
promotion as well as concerning working conditions. Being a directive, these provisions had
to be transmitted into national law and thus are applicable for private relations between
employers and employees as well.
1.3.3.5. Restrictions of basic freedoms of the citizens have to be

proportionate
No member-state should be forced to tolerate things that go against its interests, identity,
integrity or similarly important goods. On the other hand there is need to find a balance
between the legitimate interests of the citizens of the EU and the ones of the states
themselves. Concrete prescriptions on how to find this balance are very rare, practically this
method is not used to give exact rules, which is why the jurisdiction found itself asked upon
to develop rules how to check and keep the balance. The most central method for this is the
use of the principle of proportionality. According to the dogmatic of the European Court of
Justice, this principle of proportionality can be sub-classified into three categories:
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- The suitability of the measure in question for the reaching of the envisaged aim.
- The necessity of the measure for the reaching of the envisaged aim.
- The adequacy of the measure for the reaching of the envisaged aim.
The first criterion is usually the lightest hurdle to take: a measure is only then considered not
suitable if it is absolutely unsuitable for achieving the aim.
The second criterion often causes bigger problems. It demands that the mildest means is being
used for the achievement of the goal. The question to control whether is really was the mildest
one would be: Is there not another, milder means which is as efficient to reach the aim? If
there is one, then the measure used is not necessary, hence not proportionate.
The third criterion could be explained with the proverb: it does not take a sledgehammer to
crack a hazelnut. Do not use a means that causes more harm than good, do not go beyond a
certain limit, which is not in a good ratio to what can be the benefit of it. Here we need to
check the relation between aim and means. If the damage in somebody’s legal position is
bigger than the benefit for the community or general public, then we are faced with
unproportionality.
This principle is one of the most basic and most important principles in European law and
should be known and observed by all institutions equipped with state power, like judges,
prosecutors, ministries, self-government etc.
1.3.4. Interpretation methods in European law

1.3.4.1. Principle:
The rules at hand for interpretation in European law correspond to those known in national
law:
a. Wording – grammatical interpretation
b. Systematic position – systematic interpretation
c. Genesis of a rule – historical interpretation
d. Ratio of a rule – teleological interpretation
In many cases several solutions to a legal interpretation are possible without being able to
decide, which is right and why only one can be right.
Firm rules for a priority of one of the interpretation methods do not exist in most national
legal systems, though some think the “clear wording” is to be preferred.
1.3.4.2. European particularities

Ad a: wording – grammatical interpretation
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The European Court of Justice has decided that if the wording gives a clear result, there is no
need to recur to other methods. This seems obvious, but contains a tremendous problem in
European law, because there are many, possibly varying wordings in the – at the moment – 23
official languages, which are equal in their rank, because there is no language which is “more
correct” or higher in rank than the others.
Ad b.: systematic position – systematic interpretation

Here two principles have to be observed:
aa. The unity of European law: EU law makes up a unified system, which is applicable in all
member-states in the same way; therefore it is to be understood out of itself and to be
interpreted independent from the national law system, so-called autonomous interpretation.
bb. Secondary law has to be interpreted in conformity with primary law, which means that the
law lower in hierarchy – regulations, directives – has to be in harmony with the higher-
ranking law.
Ad c.: genesis of a rule – historic interpretation

This interpretation method has growing importance, because the making of directives and
regulations has become more and more documented and transparent recently. For older
secondary law or the older primary law this does not hold true.
Ad d.: ratio of a rule – teleological interpretation

This method has in the eyes of the European Court of Justice the highest relevance. In
particular the following principles need to be observed:
aa. Workability of the Community
bb. Institutional balance
cc. Effectiveness („effet utile“): the practical benefit of a rule should be as high as possible.
1.3.5. Preliminary Ruling

1.3.5.1. The function of the preliminary ruling.
The national judges are obliged to interpret and apply European law in their own
responsibility and independence. This bears the risk that in the presently 27 different member-
states completely different interpretations of the same provisions of European law are used by
the national jurisdictions. This has to be avoided, because every citizen of the European
Union ought to have identical rights, wherever he or she is within the Union. In order to get
such identical rights for the citizens and identical interpretation of the law of the European
Union, the Court in Luxemburg has been set up to give an authentic interpretation of the law,
which is obligatory to use for the courts of the member-states, and the national courts have the
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possibility or even duty to turn to the Court in Luxemburg, whenever they have doubts how to
interpret European law. The procedure to do so is called preliminary ruling.
1.3.5.2. Details of the Reference

A reference to the Court of the European Union should consist of the following parts:
- Formulation of the question
- Summary of the facts
- Account of relevant legal aspects
- Account of the reasons that cause the court to refer the case to Luxemburg
- When indicated: Account of the legal views of the parties
Out of these points two need to be enlarged upon

a) Formulation of the question
b) Account of the facts and the legal problems
Ad a) Formulation of the question

Generally the question should be put as abstract as possible, but at the same time as concrete
as necessary. In case of doubt a concrete putting up of the question is preferably towards an
abstract formulation, in order to guarantee that the answer by the Court is a real help for
solving the case by the national court. It has to be observed that the Court of the European
Union will probably reformulate the question anyway, usually by using a formula like:
“basically the referring court wants to know whether…..” Such adjusting of the question is
absolutely normal and not a shame for the referring court.
But: Even if you formulate your question very concrete, the national regulation should not be
named in the question, because the Court will not give an answer to this regulation, but to an
abstract rule.
Example: „Are art. 45 and art. 49 of the treaty to be interpreted in a way that they are opposed
to a national regulation of a member-state which forbids other EU-nationals to use an
academic degree they acquired in another member-state without magisterial permit to do so?”
(Not permissible would be a question like the following: „.. are the articles 45 and 49 opposed
to § xy of the law on academic degrees from 1951…“ The Court would have to interpret this
question and reformulate it.)
You should be aware: If the Court does not understand the question in the way you meant it,
you might get an answer that is not of any help for you! This could have the consequence that
you wasted a lot of your and the parties` time and you are as insecure as to the right solution
as you were before.
15
What might be great help is a discussion with the parties, particularly with their lawyers.
Their role should not be underestimated anyway. Very often it is them who raised the
question of a European interpretation of the law, they might even be specialised in the area in
question and have knowledge of the jurisdiction of the Court of the European Union. A
discussion with them might bring clarity to different points and might help to formulate the
question. Nevertheless: it is exclusively the judge who decides whether to refer at all and if
yes, what question to put. The national court has the last word in this decision.
Ad b) Account of the facts and the legal problems

It is important to know that the rapporteur at the Court in Luxemburg who first works on the
case is – according to an unwritten, yet strictly kept rule – never a national of the country,
where the case comes from. In other words: This judge in Luxemburg will definitely be an
excellent jurist – otherwise he or she would not be in Luxemburg – but they will not be an
expert of the national law that the case is about. That is why it is extremely important to give
a thorough, but short account of the particularities of the national law. Give the Court some
well-thought information about the legal background of the case in order to avoid
misunderstandings. It is you who wants to be helped, so help the colleagues in Luxemburg.
Every question the Court has to put to the national court, every reference to the file as well as
every internal research in Luxemburg takes time and prolongs the time of the procedure.
Imagine you got a question from Portugal without knowing anything about Portuguese law!
You would be grateful for every piece of information necessary to understand the case. But be
aware: a reference should not be longer than 10 pages!
1.3.5.3. Checklist for references

There a no normative minimum standards as to what a reference should look like. General
orientation should be the procedural economy. The judges in Luxemburg should be able to
quickly realise what the problem of the national court is and where this problem comes from.
Your question will be translated into all official languages of the European Union, thus it will
be known in all member-states. Only in case of doubt will the original file itself be referred to.
But this file will not be translated or published, which means that the governments of the
member-states will have no chance to know the original file. They only know the question
you referred. Make it easy for them to take part in the case. It might be important for an
enormous number of persons. But not only is this aspect important: For you as a judge, much
more important is that the preliminary ruling might be declared impermissible – for some lack
of information, for example. This has to be avoided.
From the explanations made above, the following „commandments“that need to be observed
can be concluded:
16
- The order with which you order the preliminary ruling will be in the official language of the
member-state, which is going to be the language of the procedure and could look like the
following:
1.) The procedure is suspended.

2.) The following question will be referred to the Court of the European Union: „Is art. 5 II 2.
sentence of the directive 2005/xy on xxxxxxx to be interpreted in the way that a national rule
ordering xxxxxxxxxxx collides with it and can therefore not be applied?”
- Reference needs to be precisely and clearly formulated.

- Short account of the facts.
- Precise, literal quotation of the relevant national regulations.
- Explanation of the important legal aspects.
- Explanation why this question is put.
- Declaration that the answer to this question is indispensable for the decision of the national
case and a short explanation why this is so.
- When indicated: Short summary of the arguments of the parties.
- Add the original file. Do not translate anything. The Court in Luxemburg will take care of
this.
- Correct Address: Court of the European Union, L-2925 Luxemburg, Tel: ++352-43031.
- Send the documents by registered post.
At the end of the procedure, so after getting the answer from the Court in Luxemburg and
after speaking the judgement of your court: Please inform the Court in Luxemburg, how the
national court took the answer into account, how it decided and what was the end of the
procedure. Mind that there is no obligation to do so, but it helps the research on European
Law.
To be sure: Before you formulate your questions, you should ask yourself the following
control questions:
- Is an answer to this question really indispensable for solving your case? If not, the reference
is impermissible.
- Does the answer really lie within the scope of European Law, i.e. is an area involved that
falls within the ruling competence of the European Union? If not, the question is not
permissible.
17
- Do you ask something which is to be answered according to your national law? If yes:
question is not permissible.
- Have you – from the point of view of a reader who is not a jurist of your national law –
formulated understandably what the question and the case is all about? If not: Formulate again
more precisely.
- Is it really not clear what the answer would be in European law? If it is clear, question is
superfluous and should not be put.
- Does the question deal with the European Convention on Human Rights? If yes: question is
impermissible (the party him/herself can turn to the Court in Strasburg).
- Has the question been put in an abstract, but understandable way? If not: formulate anew!
- Has the question already been answered? If yes: question superfluous.
You should put and answer these questions conscientiously. This way, you can save a lot of
nuisance and waste of time for yourself and the parties.
A last piece of advice is that you turn to somebody else who speaks a foreign language well.
Can he or she understand your question and translate it into another language? Be aware that
your question will be read in a translated version. If the question is not translatable – because
it is simply too long or complicatedly structured – it cannot be understood and answered!
4. Which court has to make a reference?

As a rule every court can make a reference, those courts against whose judgements there is no
remedy in national law are obliged to make a reference.
1.3.6. The effect of directives and how to work with them

Regulations and directives are the two types of secondary legislation. Regulations are
comparatively easy to handle, because they are basically equal to laws in national legislation,
are directly applicable after entering into force and bind everybody they apply to. Directives
are a very important, indirect way of harmonising national legislation and they play a more
role for the rules of the Common Market. According to art. 288 III they are binding as to the
object to be achieved, but they leave the national authorities the choice of form and methods.
1.3.6.1. What effect do directives have?
18
The member states are obliged to transfer directives into their national legal system. If they
miss to do so, the member states are liable to pay damages to the citizens who have suffered
any loss because of this failure to transmit the directive into national law.
But obviously not only directives that have not been transferred into national law have an
effect on jurisdiction and can have importance for the law-applier. It is also when the directive
has been adapted and been put into national law that particularly the judges still have to pay
attention to the directive that the applicable law is based on. The Court of the European Union
in Luxemburg has governed that all bodies belonging to the state or equipped with state-
power are obliged to strive for the achievement of the aim as declared and put down in the
directive and have to take all measures in order to do so. This goes particularly for the
national courts and the judges. When they apply law based upon directives they are obliged to
interpret this national law in the light of the wording and objective of the directive. This
means that practically the national judges should consult the directive when interpreting the
national law, so if he or she has doubts as to which solutions is correct.
A directive which has not or not correctly been transferred into national law not only opens
the danger of state-liability, as mentioned above. In fact this is only the second step. In a
previous step state-institutions are obliged to apply the directive directly and immediately, if –
and this is the pre-condition – there is a relation between state and citizens, a so-called vertical
relation. If there is a relation between two individuals equipped with equal right – horizontal
relation, between private entities or citizens – there is no possibility for a direct effect. The
reason for this is that the European Court “invented” the direct applicability of directives as
some kind of sanction to the state that fails to transform the directive and thus to force the
member states to obey the rules and obligations that have been agreed upon – to transform the
directive into national law within a given deadline. This way of punishing the state of course
does not apply to citizens, because there is no justification for punishing them, because they
did not have any obligations to obey. In a horizontal relation there is only room for directive-
conform interpretation of the national law as long as it is based on a directive.
For the direct applicability of directives there are several conditions which need to be
fulfilled. It is necessary that the member state first of all failed to transform the directive into
national law within the given deadline. Secondly it is necessary that the directive is clear and
precise in its content, free of any conditions and gives the citizens’ rights or entitles him or
her to something. Then the directive has direct effect, but only to the extent that it gives
positive rights to the citizens. Those parts of the directive that might burden the citizens have
to be left out of consideration.
1.3.6.2. How to interpret directives?

In a judgment from 2000 – C-240/98, „Oceano“ 27.06.2000 – the European Court of Justice
stated that the national court must adapt its interpretation of the directive as much as possible
to the wording and objective of the directive in order to reach the aim envisaged by it the
directive. In order to do so the court has to consult the reasoning of the directive as expressed
19
in the preamble of the directive. The intention as expressed there is the most reliable source of
information as to what was the objective or intention of this material.
1.3.7. State liability for breach of EC law obligations

1.3.7.1. Liability for the legislative body
The liability of the state for the acts of its representatives is a particularity of European law,
which essentially diverts from the kind of state liability that is known from national law.
Among the current member states there is no such country which has known a financial
responsibility of the state for the inactivity of the law-giving organs. Yet the European Court
of Justice created such responsibility and has ever since been using this jurisdiction to express
a state`s accountability for its shortcomings in fulfilling its duties deriving from European
law.
The basis of this jurisdiction is the judgment Francovich – C-9/90, 19.11.1991 – which has
the following background: Francovich, Bonifaci and others were workers employed with an
Italian enterprise which went bankrupt in 1985. Until two years before this event every
member state would have had to transfer a directive into national law which would have given
a basic protection for employees of a bankrupt firm, giving them an entitlement to a certain
amount of money depending on their last wages. Because Italy had failed to transpose the
directive into national law, Francovich and his co-workers were left without money. As we
had stated before, here there is no room for a direct application of the directive, because we
have a horizontal relation between the bankrupt firm and its employees. But the European
Court of Justice found a different solution. It stated that if the directive gives the individual
rights, then the objective of the directive can only be reached if the state is held responsible.
For this it developed three conditions:
1. The directive that was not transposed into national law within the given deadline serves the
aim of giving the individual specific rights.
2. The content of these rights has to be so concrete that the minimum amount of the advantage
for the individual is recognizable.
3. Between the infringement against its duty to transpose the directive into national law and
the individual’s damage has to be a causal connection.
The last criterion has to be reviewed by the national court. It is remarkable that a default by
the state is not necessary, so practically the state has no chance to excuse itself.
20
Since the years since laying the foundation of state liability until today the European Court of
Justice had vast opportunity to further develop its jurisdiction concerning state liability. By
now the criteria for the question whether the state is held responsibility for a certain drawback
can be formulated on a more abstract level:
- The European rule the state infringed upon particularly intends to bestow rights on the
individual
- The infringement is a qualified or considerable one.
- There is a causal connection between the state`s infringement and the individual`s damage.
1.3.7.2. Liability for the executive body

There are by now quite a large number of judgments in which the European Court of Justice
had the opportunity to state the state`s liability for the executive. An important step was the
judgment Hedley Lomas – C-5/94, 23.05.1996. The facts of the case were the following: The
Company Hedley Lomas Ltd. had its domicile in the United Kingdom and was doing business
with the utilization of sheep meat. For this purpose the enterprise exported live sheep to Spain
in order to have them butchered there. The ministry in charge of giving the permit for the
export refused to do so referring to allegations saying that Spain would not observe a
European directive foreseeing rules for the killing of animals with the purpose of saving the
animals’ avoidable suffering. The ministry quoted reports by animal rights activists to
undermine its view. Hedley Lomas Ltd. contradicted these reports and tried to prove the
opposite, that the directive was transmitted into Spanish law properly and that their partner
observed all European standards. They asked the representatives of the ministry to go to Spain
to convince themselves, which they refused to do. Instead the ministry declined the permit
finally. The firm suffered considerable loss and turn to the British court to claim damages.
The court in charge of the case turned to the Court in Luxemburg with a preliminary ruling
and thus gave the European Court of Justice opportunity to clarify its legal view of this
constellation of state liability. It stated that indeed there was an infringement lying in
restricting the freedom of goods – sheep of course are goods – which allows bringing goods
from one member state to the other without any unjustified limitation. This infringement was
seen a considerable one, because it had long be clear jurisdiction that one state must not
violate European law referring to another state doing so, too. It also seemed that there was a
causal connection between the infringement and the damage which entailed the obligation to
pay damages.
1.3.7.3. Liability for the judiciary
21
The liability of the state for its judiciary had been very controversial, but unconceivable for a
long time. The reason for this has always been the independence of the judiciary, which made
it obvious that a state could not influence the jurisdiction of its courts and therefore could not
prevent infringements by the judges. Also the European Commission felt that they had to
respect the independence of the judiciary and did not take measure against states, if the
judiciary failed to respect. This changed completely in the year 2003 with a new jurisdiction
by the European Court of Justice, which was triggered by two cases. One of the judgments –
C-224/01, Köbler, 30.10.2003 – decided a case from Austria and had the following
background: Professor Köbler was at that time teaching history of law at the University of
Innsbruck, Austria, after teaching many years at German universities. After a while professor
Köbler applied for a supplementary allowance which was to be paid to all those employees
working longer than fifteen years for Austrian universities. Mr. Köbler was of the opinion that
although he had not worked fifteen years in Austria, he in fact had worked fifteen years for
European universities and not taking this into consideration would be discriminative. The case
was brought before the administrative court in Vienna who turned to Luxemburg for a
solution to this problem. After the case had arrived to Luxemburg another case – C-15/96
Schöning-Kougebetopoulou, 15.01.1998 – was decided in which a similar constellation had to
be solved: Mrs. Schöning-Kougebetopoulou worked as a physician in a Greek hospital before
she moved to Germany and started work in a hospital in Hamburg. After a while she – as Mr.
Köbler – applied for a supplementary allowance which was granted for those colleagues who
had belonged to hospitals in Hamburg for more than 8 years, arguing that she had worked for
2 years in Hamburg and 6 years in Greece. Her application was declined why she turned to
the court which then asked the European Court of Justice. The court in Luxemburg answered
that indeed the practice in Hamburg was discriminative and the time served in Greece must be
taken into consideration. The chancellor of the European Court of Justice sent the judgment
Schöning-Kougebetopoulou to the court in Vienna asking whether after this verdict there was
still need to answer the reference made by the administrative court. The court informed the
parties giving a hint that the case would probably be decided in favour of Mr. Köbler. Three
months later the administrative court withdrew its reference and by judgment of the same day
dismissed Mr. Köbler`s claim arguing the supplementary allowance was a loyalty bonus that
was justified and not discriminative. A while later on Mr. Köbler sued the Republic of
Austria before a Vienna civil court asking for damages, because the administrative court had –
to his mind – breached severely European law. The civil court turned to Luxemburg for an
answer. The European Court of Justice in its judgment referred to the jurisdiction in former
cases like Francovich, Hedley Lomas and others. The Court extensively dealt with the
independence of the judiciary, but stated that this principle was not able to overrule the
liability of the state for all bodies equipped with state power. Yet in this concrete case the
breach of the European law was found not evidential or considerable enough, so that as a
result the Republic of Austria was not held responsible for the wrong decision of the Vienna
administrative court. Though this concrete result of the Köbler-case seems quite controversial,
the essence is that indeed the member states are liable for their courts which is the correct
solution to the abstract problem.
22
In another case from the same year – C-129/00, European Commission ./. Italy, 09.12.2003 –
the European Court of Justice had to deal with the problem that Italian court, particularly the
Supreme Court did not take into consideration a clear jurisdiction by the European Court of
Justice and decided otherwise than Luxemburg had ruled several times before. In this case the
European Court of Justice stated that there was no hindrance to initiate infringement
proceedings against a member state independent of the question which state body committed
the breach of European Law. It held that for lower-instance courts that did not observe
European law there was no need to intervene, because the importance of such verdicts would
be minor. A different situation arises when a Supreme Court rendered a judgment which was
of general importance. The result that the European Court of Justice reached was very
interesting and surprising: It stated a breach of European law, but not through the jurisdiction,
but through the legislation. In such cases it is – according to the European Court of Justice –
the task of the government or the legislative body to change the national law in a way that the
jurisdiction has to be changed in order to be in conformity with EU law.
23
2. Part. Civil Law
2.1. Procedure Law (in relation to Civil or Commerical Law)
2.1.1. Jurisdiction
When (at least) a Party is domiciled in another EU State, it is important to clarify which State
has the jurisdiction (which Court within the country decides according to national Law).This
is regulated in the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial matters.
Application (Art.1)
This Regulation applies to civil or commercial matters. It does not apply to revenue, customs,
and administrative matters or in other special cases enumerated in par 2.
Main points of the Content:
a. Principle:
Generally according to Art. 2 I the member state has jurisdiction where the defendant has
his/her domicile (Art. 60)
This is also applicable for legal persons.
b. Exceptions:
aa. When there is exclusive jurisdiction (Art 22).
bb.When the defendant appears before the court without contesting the competence of
jurisdiction (Art 24 of the Regulation).
cc. When the jurisdiction of a Member State has been agreed effectively. The most
important formalities are (Art 23)
- either (Paragraph 1a1 Alternative) in writing (also by fax or email: Par 2)
- or (Par 1a 2. Alternative) orally but confirmed in writing
- or in a form which accords with practices, which the parties have established
between themselves (Par 1 b): normally are regular
trade relations between
parties, which always had the same agreement about the jurisdiction of the content
and which were of a certain duration and frequency.
24
- or in a form corresponding to international commercial practice (Par. 1 c)
dd. When there is special jurisdiction according to Art 5-21.
(1) The special provisions/matters are given priority, insurance, Art 8-14)
consumer contracts, (Art 15-17)as well as individual employment contracts (Art 18-
21):;
(2) Also other special contracts are given priority as settled in Art. 71;
(3) Special grounds of jurisdiction according to article 5
- Nr. 1 (Place of the performance of the obligation in question)
First alternative (1b): Contracts:
- regarding the sales of goods or the provisions of services
- the interpretation of the types of contract is autonomous (not according to national
law), which is especially important with regard to the provision of services: here the
European understanding is largely advanced (see article 57 AEUV)
- the place of the performance of the obligation is in these cases the place, where the
service has been rendered according to the contract (or should have been rendered)
ie.the provision of services that has been supplied (orshould have been supplied);
Second alternative (1 a): all other contracts

- contract:
the interpretation of the types of contract is also autonomous
- the place of the performance:
the interpretation of is not autonomous but has to follow the nation law applicable
according to international rules (see: ECJ Rs. C-27/02 Nr.33, 45-59 = ECJ 2005 I
481).
Nr.2 (Matters relating to maintenance):
- as a general rule, these are to be brought before the courts for the place where the
maintenance creditor is resident;
Nr.3 (Matters relating to liability for wrongful acts):
- this will be decided by the courts for the place where the harmful event occurred or may
occur.
(3) Course of the procedure (Art. 25 – 30):
(a) Principle:
25
First alternative: The court accepts his jurisdiction:
The process continues according to the respective national law
Second alternative: The court rejects his jurisdiction:
The court shall declare that it has no jurisdiction and dismiss the action by judgment (Art.25)
(b) Actions pending elsewhere and related actions:

The exact proceedings
- involving the same parties and the same actions and brought in the courts of different
member states
- in related actions pending in the courts of different member states are settled in Art. 25 – 30.
2.1.2. Transmission1
The Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13
November 2007 (repealing Council Regulation (EC) No 1348/2000) applies to civil or
commercial matters where it is necessary to transmit judicial or extrajudicial documents for
service from one Member State to another.
a. Application
This Regulation applies to civil or commercial matters where it is necessary to transmit
judicial or extrajudicial documents for service from one Member State to another.
Revenue, customs, administrative affairs or cases of state liability for actions or omissions in
the exercise of state authority are not concerned, nor does it apply where the address of the
person to be served is unknown.
It doesn’t apply to Denmark.
b. Main points of the content

aa. Special agencies for transmission (Art. 2, 3):
Agencies designated by the Member States are responsible for transmitting and receiving
documents. The Member States must provide the Commission with their names and
addresses, the geographical areas to which they apply, and their accepted languages and
means of receipt of documents. Each Member State also has a central body for supplying
information to the agencies, resolving any difficulties that may arise and forwarding requests
for service by the transmitting agency to the relevant receiving agency in exceptional
circumstances. A federal state, one where there are several legal systems or which has
1
See the Summaries of EU- Legislation:
http://www.europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters
26
autonomous territorial units may name more than one such agency or central body. The
designation is valid five years and maybe renewed at five-year intervals.
bb. The service of judicial and extrajudicial documents (Art. 4, 5, 16):
It is the applicant, who forwards documents to the transmitting agency who bears any costs of
translation prior to transmitting the document. The transmitting agency has to advise the
applicant that, in case the document is not in a language which the addressee understands or in
the official language of the Member State where service is to be effected, the latter can refuse
to accept the document.
Documents must be transmitted directly and as soon as possible between the agencies by any
appropriate means of transmission, as long as they are legible and faithful to the original. A
request using the standard form as annexed to the Regulation must be attached in one of the
accepted languages that the Member States indicate. The documents are exempt from
legalisation or any equivalent formality.
cc. Receiving documents (Art. 6, 7, 8):
The receiving agency first has to send a receipt within seven days.
Then she should:
- either serve the document itself or have it served within one month,
- if this is not possible, the receiving agency must inform the transmitting agency and
continue to try to serve the document.
Serving is done according to the law of the receiving Member State or by a particular method
if this is requested by the transmitting agency and it conforms to the national law.
When service has been carried out, a certificate of completion of the formalities involved
must be completed in a language accepted by the Member State of origin and sent to the
transmitting agency.
The receiving agency informs the addressee of their right to refuse the document, if it is not
written in a language that he or she understands or in the official language of the Member
State where service takes place. The refusal shall take place at the time of service or by
returning the document to the receiving agency within a week.
dd. Date and costs (Art. 9, 11):

The date of service will be the date on which the document is served, according to the law of
the Member State addressed, except where it must be addressed within a particular period
according to the law of that State.
27
The service must not incur costs or taxes in the Member State addressed, except if there has
been a particular method of service or recourse to a judicial officer there. In that case, it is up
to the applicant to bear the costs.
ee. Other means of transmission (Art. 12 -15):

Documents may also be served directly by
- using registered post with a receipt or via the judicial officers,
- officials or other competent persons of the Member State addressed, if this is permitted by
the Member State in question.
In exceptional circumstances, documents may be forwarded to agencies of another Member
State via consular or diplomatic channels.
c. Review clause
The Commission should provide and regularly update a manual containing the information
provided by the Member States. By 2011 and every 5 years subsequently, it shall further
present a report on the application of this Regulation, focusing on the agencies' effectiveness.
2.1.3. Taking Evidence2

The Regulation (EC) of the European Parliament and the council Nr.1206/2001 from 28 May
2001applies the taking of evidence between Member of states in civil and commercial
matters.
a. Application (Art. 1):

This Regulation shall apply in civil or commercial matters where the court of a Member
State (with the exception of Denmark), in accordance with the provisions of the law of
that State, requests:
- the competent court of another Member State to take evidence
- or to take evidence directly in another Member State.
b. Main points of the content

aa. Establishing direct transmission between the courts (Art. 2):
Member States are supposed to draw up a list of the courts authorized to take evidence,
indicating the territorial and/or special jurisdiction of those courts.
2
28
Requests are directly transmitted by the court before which the proceedings have commenced
or are contemplated (the 'requesting court') to the court of another Member State taking
evidence (the 'requested court').
bb. Central body (Art.3):
Each Member State is to designate a central authority responsible for:
- supplying information to the courts;
- seeking solutions to any difficulties regarding transmission;
- forwarding, in exceptional cases, a request to the competent
court.
cc. Criteria regarding the form and content of the request:
- the request has to be made using the forms enumerated in Art. 4
- requests must be drafted in the official language of the Member
State of the requested court or in any other language that the requested
Member State has indicated (Art. 5)
- requests and all other communications must be transmitted by
the swiftest possible means (Art.6)
- there is no claim of reimbursement except in special cases
(Art.18)
dd. Execution of the request in accordance with national law (Art.10):
Requests are executed in accordance with the law of the requested Member State.
The request must be executed within ninety days of receipt. If the requesting court
calls for the request to be executed in accordance with a special procedure
(including the use of sound and image recordings), the requested court must
comply with such a requirement unless there are legal or practical obstacles.
ee. Refusal of the request (Art. 14):
The execution of a request may be refused only in special cases enumerated in Art.14.
ff. Special rules for direct evidence: see Art.17.
c. Review clause
No later than 1 January 2007, and every five years thereafter, the Commission will present a
report on the application of the Regulation to the European Parliament, the Council and the
Economic and Social Committee.
2.1.4. Enforcement3
2.1.4.1. Enforcement for uncontested claims.
3
29
First it has to be proved whether the claim is contested or uncontested: for uncontested
claims exists an easier and faster way to use:
The Regulation (EC) of the European Parliament and the council Nr.805/2004 from 21
April 2004 applies the enforcement of uncontested claims in processes between
Member of states in civil and commercial matters.
(1) Application (Art.2, 3):

This Regulation applies to civil or commercial matters where it is necessary to enforce an
uncontested claim.
Revenue, customs, administrative affairs or cases of state liability for actions or omissions in
the exercise of state authority are not applied, nor other special cases enumerated in Art. 2
par 2.
It also does not apply to Denmark.
The titles to be certified are enumerated in Art.3
(2) Main points of the content

aa) Jurisdiction (Art.6 par.1, 4 par.6):
The “court of origin”: the court seized of the proceedings at the time of the fulfilment of the
conditions set out in Art.3
bb. Form
For judgment the forms of the Annex (including all important points) has to be used.
cc. Minimal standards (Art.12-19):
The court proceeding in the Member State has to observe minimal standards enumerated in
Art.12 – 19.
dd) Enforcement (Art.20 – 23):
Enforcement procedure is governed by the law of the member state. The authorities of the
member state are responsible for the enforcement. The details are enumerated in Art. 20 – 23.
2.1.4.2. Enforcement of contested claims.
The rules are part of the Regulation 44/2001 (see A1) chapter III ff.
aa. Application:
A judgment given in a Member State is to be recognized in the other Member States without
any special procedure being required. "Judgment" means any judgment given by a court or
tribunal of a Member State, whatever the judgment may be called, including a decree, order,
decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as
to its substance.
bb.Recognition (Art. 33 – 37):
Normally it will be recognized without any special procedure (Art. 33 par.1).
30
A judgment will not be recognized in the special cases enumerated in Art. 34, 35.
cc. Enforcement (Art. 38 ff):
A judgment is to be enforced in another Member State when, on the application of any
interested party, it has been declared enforceable there (Art.38 par.1).
The court of jurisdiction is indicated in the list in Annex 2 (Art.39 par.1), the local jurisdiction
in par.2.
The details of the proceeding are settled in the Art.40ff.
2.1.5. European small claims procedure4

The conditions of the application are settled in the Regulation (EC) No 861/2007 of the
European Parliament and of the Council of 11 July 2007.
Application (Art. 2)
All cases concerning sums under EUR 2 000, excluding interest, expenses and disbursements.
The Regulation does not apply to revenue, customs or administrative matters, to the liability
of the State or to other special cases enumerated in paragraph 2.
Judgments delivered under this procedure are recognized and enforceable in the other
Member States without the need for a declaration of enforceability. The procedure is optional,
offered as an alternative to the possibilities existing under the national laws of the Member
States. It is applicable in all EU Member States except Denmark.
Course of the Procedure
(a) The claimant fills in a standard claim form (Form A, provided in Annex I to the
Regulation), giving details of the claim, the sum demanded, etc., and lodges it with the
competent court by any means of communication acceptable to the Member State in
which the action is taken.
If the claim is outside the scope of the Regulation , the court will notify the claimant to
that effect; if the claim is not withdrawn, the court will proceed with it in accordance
with the relevant applicable procedural law in that Member State (Art. 4 paragraph 1-
3).
If the claimant has not provided enough information, the court will send him a Form B
(Annex II) asking for the missing information. The claim will be rejected if the
claimant fails to complete or correct the claim in the time specified, or if it is
manifestly unfounded or inadmissible (Art.4 paragraph 4).
(b) Once the court has received the properly filled in claim form, it prepares a
standard answer form (Form C, Annex III). This, together with a copy of the claim
4
31
and, where applicable, the supporting documents, is served on the defendant within 14
days (Art.5 paragraph 2). The defendant has to reply within 30 days (Art.5 paragraph
3); otherwise judgment is given by the court (Art.7 paragraph 3).
(c) The main points of the following process:
- Languages and translations (Art.6):

The claim must be submitted in the language, or one of the languages, of the court, as must
the response, any counterclaim, the description of supporting documents, etc.
The court can require a translation of a document received in another language only if that
document seems to be necessary for giving the judgment.
If a party refuses to accept a document because it is in a language he does not understand or a
language other than one of the official languages of the Member State addressed, the court
will notify the other party so that he can supply a translation.
- Oral hearings (Art. 8) :
The court will hold an oral hearing only if this appears to be necessary or if requested by one
of the parties.
The request may be refused if an oral hearing is obviously not necessary for the fair conduct
of the proceedings.
The hearing may be conducted through videoconference or other communication technology.
- Taking evidence (Art.9):
The court determines the extent of the evidence necessary for its judgment and the means of
taking it, using the simplest and least burdensome method.
- Representation of the parties (Art. 10):
A representation by advocates or legal advisers is not necessary.
- Costs (Art. 16):
The costs of the proceedings are borne by the unsuccessful party.
- Judgment (Art. 7):
The court must give judgment within 30 days of receipt of the response from the defendant
(or claimant, if there is a counterclaim).
It can, however, decide to ask for further information (the parties have 30 days to reply) or to
take evidence in the matter or to summon the parties to an oral hearing (within 30 days: see
also below); in these cases, the court gives its judgment within 30 days of receiving the
information or holding the hearing. If the parties do not reply in time, the court will still give
its judgment.
32
- Recognition and enforcement (Art.20):
Judgments are recognized and enforced in the other Member States, and cannot be reviewed
as to substance in the Member State of enforcement.
At the request of one party the court will issue a certificate of judgment (without further
cost), using Form D (Annex IV).
- Appeals against a judgment (Art. 17):
Appeals against a judgment are governed by the procedural law of the Member States (but
they have to respect minimum standards: Art.18), which must inform the Commission
whether an appeal is available under their procedural law and in what court. The Commission
will make that information publicly available through the Official Journal of the European
Union and any other appropriate channel.
- The process of Enforcement of the judgment (Art.21):
This is governed by the law of the Member State in which the judgment is enforced.
The party seeking enforcement produces an original copy of the judgment, and of the
certificate (Form D) translated by a qualified person into the language, or one of the
languages, of the Member State of enforcement.
The party is not required to have an authorised representative or a postal address in the
Member State of enforcement, other than with agents competent to carry out the enforcement
procedure.
The authorities cannot require any security, bond or deposit on the grounds that the claimant
is a foreign national or is not domiciled or resident in the Member State of enforcement.
- Refusing of the enforcement (Art. 22):
The court in the Member State of enforcement can, at the request of the defendant, refuse to
enforce the judgment in special enumerated cases (paragraph 1).
Review clause (Art. 28):
The European Commission will report to the European Parliament, the Council and the
Economic and Social Committee on the application of the Regulation by 1 January 2014. It is
assisted by a committee.
2.1.6. European order for payment procedure5

Using an order for payment is always practical if the claimant don’t expect any objection to it.
The procedure in cross-border cases is established in the Regulation (EC) No 1896/2006 of
the European Parliament and of the Council of 12 December 2006 creating a European
order for payment procedure.
Application (Art. 2, 4, 6):
5
33
The European order for payment procedure applies to civil and commercial matters in cross-
border cases, whatever the nature of the court or tribunal. A "cross-border case" is one in
which at least one of the parties is domiciled or habitually resident in a Member State other
than the Member State of the court hearing the action.
The Regulation applies to all Member States except Denmark. The procedure does not extend
to revenue, customs or administrative matters or the liability of the State for acts and
omissions in the exercise of State authority or to other special cases enlisted in paragraph 2.
A pecuniary claim must be for a specific amount that has fallen due at the time when the
application for a European order for payment is submitted (Art.4).
Course of the procedure:
- Applying for a European order for payment (Art. 7):
The Regulation includes a form, standard form A set out in Annex I, to be used to apply for a
European order for payment, which must include the in this form enumerated details- also the
other details are clearly enumerated in Art.7.
- Accepting or rejecting an application for a European order for payment
(Art.8ff):
The court to which an application for a European order for payment has been made considers
as soon as possible whether the applicability conditions (Art. 2-7) have been met and the
claim is well-founded (Art.8).
If the application form is not complete, the court gives (using the form B, Annex II) the
claimant an opportunity to complete or rectify the application by a certain date, unless the
claim is clearly unfounded or the application inadmissible (Art. 9).
If the requirements are met for only part of the claim, the court (using the form C, Annex III)
may propose that application be amended. The claimant is asked to accept or refuse the
proposed European order for payment for the amount specified by the court within a certain
timescale. Claimants must be informed of the consequences of their decision. They are to
reply by returning the standard form (Art.10 paragraph 1).
If the claimant accepts the court's proposal, the court issues a European order for payment for
the part of the claim accepted by the claimant (Art.10 paragraph 2).
If the claimant fails to reply within the time limit specified by the court or refuses the court's
proposal, the court rejects the application for a European order for payment in its entirety.
The court rejects applications also in the cases enumerated in Art.11.and informs the applicant
of the reasons for which the claim has been rejected using form D, Annex IV (paragraph 1).
There is no right of appeal if an application is rejected (paragraph 2). The rejection of an
application does not, however, prevent a claimant from pursuing a claim by means of a new
application for a European order for payment or using any other procedure available under the
law of a Member State (paragraph 3).
- Issuing a European order for payment (Art. 12-15):
34
If the conditions for applying for a European order for payment are met, the court issues
(using the form E in Annex V) the order as soon as possible and normally within 30 days of
the lodging of the application. The special contents of this order are enumerated in Art. 12 and
form E.
- Serving the order for payment (Art. 13-15):
A European order for payment is served on a defendant in accordance with the national law of
the State in which service is to be effected.
The Regulation sets out minimum procedural standards regarding service either with proof of
receipt by the defendant (Art. 13) or without (Art. 14).
Service may also be effected on a defendant's representative (Art.15).
- Opposing a European order for payment (Art.16,17):
The person who receives a European order for payment, i.e. the defendant, may lodge a
statement of opposition (using the form in Annex VI, form F) with the court that issued the
order for payment (the "court of origin").
The statement of opposition must be sent (respecting the formal conditions settled in
paragraph 4, 5) within 30 days of the order being served on the defendant. Defendants
indicate in their statement of opposition that the claim is contested, without having to specify
their reasons (Art.16).
When a defendant lodges a statement of opposition, the proceedings continue before the
competent courts of the Member State of origin in accordance with the rules of ordinary civil
procedure, unless the claimant has requested that the proceedings be terminated in that event
(Art.17).
Enforcement (Art.18-22):
If the defendant does not object the court (using form G, Annex VII) declares the
enforceability of the order for payment (Art.18).
The European order for payment is recognized and enforced in the other Member States
without the need for a declaration of enforceability and without any possibility of opposing its
recognition (Art.19).
But in special cases enumerated in Art.20 the Regulation authorizes the defendant to apply for
a review of the European order for payment before the competent court after the expiry of the
30-day time limit for lodging a statement of opposition. If the court rejects the defendant's
application, the European order for payment remains in force. If, on the other hand, the court
decides that there is a case for a review, the European order for payment becomes null and
void.
Enforcement procedures are governed by the national law of the Member State in which the
enforcement of the European order for payment is requested (Art.21).
Enforcement is also refused by the competent court in the Member State of enforcement if the
European order for payment is irreconcilable with an earlier decision (Art.22).
35
By 12 December 2013 at the latest, the Commission will present a detailed report reviewing
the operation of the European order for payment procedure.
2.2. Substantial law.
2.2.1. The law applicable to contractual obligations (“Rome I”)6

The conditions are settled in the Regulation (EC) No 593/2008 of the European Parliament
and of the Council of 17 June 2008 on the law applicable to contractual obligations
(Rome I)
a. Application
It applies to all contractual obligations in civil and commercial matters in the event of a
conflict of laws.
It does not apply to revenue, customs or administrative matters, or to evidence and procedure:
Art.1 (1). Nor does the Regulation apply to the special obligations enumerated in paragraph 2
of Art.1
It applies in all EU Member States, except Denmark and the United Kingdom
Any law indicated in this Regulation should be applied, even if it is not that of a Member
State (Art.2).
Main points of the contents:
Freedom of choice (Art.3)

The parties to a contract are to choose the governing law. It may be applied to only a part or
the whole of the contract. Provided that all the parties agree, the applicable law may be
changed at any time.
If the law chosen is that of a country other than that relating most closely to the contract, the
provisions of the latter law need to be respected.
If the contract relates to one or more Member States, the applicable law chosen, other than
that of a Member State, must not contradict the provisions of Community law.
-Applicable law in the absence of choice (Art.4)
Where the parties have not chosen the applicable law for contracts
-there are specific rules for types of contracts enumerated in par.1
6
36
-otherwise the law is generally be determined based on the country of residence of the
principal actor carrying out the contract (par 2)
- if, however, the contract is related more closely to another country than provided by
these rules, the law of that country will be applied (par 3).
- the same applies when no applicable law can be determined (paragraph 4).
-Rules applicable to specific contracts
For the following types of contract, the Regulation lays down options for the selection of
applicable law and determines the law to be applied in the absence of choice:
-contracts for the carriage of goods (Art.5(1)) :
-contracts for the carriage of passengers (Art.5(2)):
-consumer contracts between consumers and professionals (Art.6):
-insurance contracts (Art.7):
-individual employment contracts (Art.8):
-
-formal validity (Art. 11):
basic principle: a contract is formally valid
-if it is concluded between persons who are in the same country if it satisfies the formal
requirements of the law which governs it in substance under this Regulation or of
the law of the country where it is concluded (par 1);
- if it is concluded between persons who are in different countries if it satisfies the
formal requirements of the law which governs it in substance under this Regulation,
or of the law of either of the countries where either of the parties or their agent is
present at the time of conclusion, or of the law of the country where either of the
parties had his habitual residence at that time (par 2);
- special regulations concerning
- unilateral acts (par 3)
-contracts that fall within the scope of Article 6 (par 4)
- contracts of which the subject matter is a right in immovable property or a tenancy of
immovable property (par 5)
Scope of the law applicable (Art. 12):

The law this Regulation determines as applicable to a contract will regulate interpretation,
performance, penalties for breaching obligations, assessment of damages, termination of
obligations, instructions for actions, and penalties for invalid contracts (paragraph 1);
37
In the case of problems concerning the manner of performance and the steps to be taken in the
event of defective performance, regard shall be had to the law of the country in which
performance takes place (paragraph 2).
The Commission will submit a report on the application of this Regulation to the European
Parliament, the Council and the European Economic and Social Committee by 17 June 2013.
2.1.2. The law applicable to non-contractual obligations (“Rome II”)7

The conditions are settled in the Regulation (EC) No 864/2007 of the European Parliament
and of the Council of 11 July 2007 on the law applicable to non-contractual obligations
(Rome II)
a. Application (Art. 1-3)
It applies to all non-contractual obligations in civil and commercial matters in the
event of a conflict of laws in all Member States except Denmark.
It does not apply to revenue, customs or administrative matters, or to evidence and
procedure: Art.1 (1). Nor does it apply to the special obligations enumerated in
paragraph 2 of Art.1
Any law indicated in this Regulation should be applied, even if it is not that of a
Member State (Art.3).
b. Main points of the contents:
- Freedom of choice (Art. 14):
The parties are free to choose the law applicable to a non-contractual obligation
- either by common agreement after the event giving rise to the damage
- or, between business people, by an agreement freely negotiated before the
event giving rise to the damage.
The choice must be explicit or evident from the circumstances, and must not prejudice the
rights of any third party.
This freedom of choice cannot be invoked when all the elements relevant to the situation
relate to a country other than the one chosen (par 2).
Similarly, Community law overrides the law of a non-EU country, chosen by the parties,
when all the elements of the situation are located in one or more EU Member States (par 3).
This freedom of choice does not apply to infringements of intellectual property (Art.8
paragraph 3) and unfair competition and acts restricting free competition (Art. 6 paragraph 4).
- Applicable law in the absence of choice:
7
38
(1) basic principle (Article 4):
the law applicable to a non-contractual obligation arising out of a tort/delict is the law of the
country in which the damage occurs, regardless of the country or countries in which indirect
consequences of the event may occur. There are, however, two major exceptions:
- when the defendant and the claimant are both habitually resident in the same
country at the time when the damage occurs, it is the law of that country that applies
(par.2);
- when the event is manifestly more closely connected with a different country
(e.g. deriving from a pre-existing relation between the parties, such as a contract), it is
the law of that country that applies (par.3).
(2) special regulations concerning
- product liability (Art. 5):
- Unfair competition and acts restricting free competition (Art. 6):
- Environmental damage (Art. 7);
- Infringement of intellectual property rights (Art. 8);
- Industrial action (Art.9);
- Unjust enrichment (Art. 10):
- Negotiorum gestio (Art. 11):
- Culpa in contrahendo (Art. 12):
- Scope of the law applicable (Art. 15):

The law applicable to non-contractual obligations under this Regulation governs:
- the basis and extent of liability, including the persons who may be held liable;
- the grounds for exemption from liability; the limitation or division of liability;
- the existence, nature and assessment of damage and the remedy claimed;
- the measures that the court may take to prevent or end injury or damage and
provide for compensation (within the limits of national procedural law);
- the transferability of the right to seek compensation, including by succession;
- the persons entitled to compensation for damage sustained personally;
- liability for the acts of another person;
- extinction of obligations and the rules relating to prescription or limitation
based on a period of time.
c. Review clause (Art. 30):
39
The Commission will submit a report on the application of this Regulation to the European
Parliament, the Council and the European Economic and Social Committee by 20 august
2011.
d. Application in time (Art. 31):
The Regulation will apply to events giving rise to damage that occur after it came into force
(20 August 2007).
2.1.3. Summary of relevant EU legal instruments on certain fields.
The following fields are very special and mostly not governed by Regulations but (only) by
Directives. Therefore it is interesting only for specialists working (or beginning to work) in
this area or those who are searching only for information.
The following text gives all the necessary information of relevant EU legal instruments on
certain fields.
2.1.3.1. Consumer Protection Law
1. International Law
 Convention 80/934/ECC on the law applicable to contractual
obligations opened for signature in Rome on 19 June 1980 (Rome Convention)
 Convention of 27 September 1968 on jurisdiction and the enforcement
of judgments in civil and commercial matters (Brussels Convention)
2. Primary Law
 Articles 12, 169 TFEU
3. Secondary Law
 Regulations
 Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters
 Regulation (EC) No 261/2004 of the European Parliament and
of the Council of 11 February 2004 establishing common rules on
compensation and assistance to passengers in the event of denied
boarding and of cancellation or long delay of flights, and repealing
Regulation (EEC) No 295/91
of the Council of 27 October 2004 on cooperation between national
authorities responsible for the enforcement of consumer protection laws
40
 Directives
 Council Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative provisions of
the Member States concerning liability for defective products
 Council Directive 85/577/EEC of 20 December 1985 to protect
the consumer in respect of contracts negotiated away from business
premises
 Council Directive 90/314/EEC of 13 June 1990 on package
travel, package holidays and package tours
 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
consumer contracts
 Directive 94/47/EC of the European Parliament and the Council
of 26 October 1994 on the protection of purchasers in respect of certain
aspects of contracts relating to the purchase of the right to use
immovable properties on a timeshare basis
 Directive 97/7/EC of the European Parliament and of the
Council of 20 May 1997 on the protection of consumers in respect of
distance contracts
Council of 19 May 1998 on injunctions for the protection of consumers'
interests
Council of 25 May 1999 on certain aspects of the sale of consumer
goods and associated guarantees
Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market
('Directive on electronic commerce')
Council of 23 September 2002 concerning the distance marketing of
consumer financial services and amending Council Directive
90/619/EEC and Directives 97/7/EC and 98/27/EC
Council of 9 December 2002 on insurance mediation
Council of 11 May 2005 concerning unfair business-to-consumer
commercial practices in the internal market and amending Council
Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
of the European Parliament and of the Council and Regulation (EC) No
2006/2004 of the European Parliament and of the Council (‘Unfair
Commercial Practices Directive’)
41
Council of 12 December 2006 concerning misleading and comparative
advertising
Council of 13 November 2007 on payment services in the internal
market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and
2006/48/EC and repealing Directive 97/5/EC
Council of 23 April 2008 on credit agreements for consumers and
repealing Council Directive 87/102/EEC
Council of 23 April 2009 on injunctions for the protection of
consumers' interests
4. Leading Cases
 To Directive 97/7/EC: C-336/03
 To Directive 85/577/EEC: C-361/89, C-91/92, C-45/96, C-
423/97, C-481/99, C-20/03, C-350/03, C-229/04
243/98, C-244/98, C-144/99, C-372/99, C-478/99, C-473/00, C-237/02,
C-302/04
189/94, C-190/94, C-364/96, C-140/97, C-237/97, C-168/00, C-400/00
154/00, C-183/00, C-127/04
 To the Term ‘Consumer’: C-120/78, C-382/87, C-269/95, C-
541/99, C-542/99
 To Directive 94/47/EC: C-423/97
42
2.1.3.2. Competition Law
1. Primary Law
 Preamble Section 4, Articles 3 (1) b), 34, 36, 56, 114, 115 TFEU
2. Secondary Law
a. Regulations
 Proposal for a European Parliament and Council Regulation
concerning sales promotions in the Internal Market – COM(2001) 546
final
 Amended proposal for a European Parliament and Council
Regulation concerning sales promotions in the Internal Market –
COM(2002) 585 final
of the Council of 27 October 2004 on cooperation between national
authorities responsible for the enforcement of consumer protection laws
of the Council of 11 July 2007 on the law applicable to non-contractual
obligations (Rome II)
b. Directives
 Council Directive 84/450/EEC of 10 September 1984 relating to
the approximation of the laws, regulations and administrative
provisions of the Member States concerning misleading advertising
 Directive 97/55/EC of European Parliament and of the Council
of 6 October 1997 amending Directive 84/450/EEC concerning
misleading advertising so as to include comparative advertising
Council of 11 May 2005 concerning unfair business-to-consumer
commercial practices in the internal market and amending Council
Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
of the European Parliament and of the Council and Regulation (EC) No
2006/2004 of the European Parliament and of the Council (‘Unfair
Commercial Practices Directive’)
Council of 20 May 1997 on the protection of consumers in respect of
distance contracts
Council of 23 September 2002 concerning the distance marketing of
43
consumer financial services and amending Council Directive
90/619/EEC and Directives 97/7/EC and 98/27/EC
Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market
('Directive on electronic commerce')
Council of 12 July 2002 concerning the processing of personal data and
the protection of privacy in the electronic communications sector
(Directive on privacy and electronic communications)
 Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by Law, Regulation or
Administrative Action in Member States concerning the pursuit of
television broadcasting activities
Council of 30 June 1997 amending Council Directive 89/552/EEC on
the coordination of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit of
television broadcasting activities
 Council Directive 92/28/EEC of 31 March 1992 on the
advertising of medicinal products for human use
Council of 26 May 2003 on the approximation of the laws, regulations
and administrative provisions of the Member States relating to the
advertising and sponsorship of tobacco products
Council of 19 May 1998 on injunctions for the protection of consumers'
interests
3. Leading Cases
 8/74, 120/78, 16/83, 362/88, C-126/91, C-267691, C-268/91, C-
373/90, C-315/92, C-470/93, C-210/96, C-220/98, C-465/98, C-303/97,
C-405/98, C-112/99, C-34/95, C-384/93
2.1.3.3. Business and Enterprise Law
1. Primary Law
 Articles 49-54 and 63-65 TFEU
44
2. Secondary Law
a. Regulations
 Council Regulation (EEC) No 2137/85 of 25 July 1985 on the
European Economic Interest Grouping (EEIG)
 Council Regulation (EC) No 2157/2001 of 8 October 2001 on
the Statute for a European company (SE)
of the Council of 19 July 2002 on the application of international
accounting standards
 Commission Regulation (EC) No 1725/2003 of 29 September
2003 adopting certain international accounting standards in accordance
with Regulation (EC) No 1606/2002 of the European Parliament and of
the Council
 Commission Regulation (EC) No 2273/2003 of 22 December
2003 implementing Directive 2003/6/EC of the European Parliament
and of the Council as regards exemptions for buy-back programmes
and stabilisation of financial instruments
 Commission Regulation (EC) No 707/2004 of 6 April 2004
amending Regulation (EC) No 1725/2003 adopting certain
international accounting standards in accordance with Regulation (EC)
No 1606/2002 of the European Parliament and of the Council
implementing Directive 2003/71/EC of the European Parliament and of
the Council as regards information contained in prospectuses as well as
the format, incorporation by reference and publication of such
prospectuses and dissemination of advertisements
of the Council of 16 September 2009 on cross-border payments in the
Community and repealing Regulation (EC) No 2560/2001
b. Directives
 First Council Directive 68/151/EEC of 9 March 1968 on co-
ordination of safeguards which, for the protection of the interests of
members and others, are required by Member States of companies
within the meaning of the second paragraph of Article 58 of the Treaty,
with a view to making such safeguards equivalent throughout the
Community
 Second Council Directive 77/91/EEC of 13 December 1976 on
coordination of safeguards which, for the protection of the interests of
in respect of the formation of public limited liability companies and the
45
maintenance and alteration of their capital, with a view to making such
safeguards equivalent
 Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 54 (3) (g) of the Treaty on the annual accounts of certain types
of companies
 Third Council Directive 78/855/EEC of 9 October 1978 based
on Article 54 (3) (g) of the Treaty concerning mergers of public limited
liability companies
 Council Directive 79/279/EEC of 5 March 1979 coordinating
the conditions for the admission of securities to official stock exchange
listing
 Council Directive 80/390/EEC of 17 March 1980 coordinating
the requirements for the drawing up, scrutiny and distribution of the
listing particulars to be published for the admission of securities to
official stock exchange listing
 Council Directive 82/121/EEC of 15 February 1982 on
information to be published on a regular basis by companies the shares
of which have been admitted to official stock-exchange listing
 Sixth Council Directive 82/891/EEC of 17 December 1982
based on Article 54 (3) (g) of the Treaty, concerning the division of
public limited liability companies
 Seventh Council Directive 83/349/EEC of 13 June 1983 based
on the Article 54 (3) (g) of the Treaty on consolidated accounts
 Eighth Council Directive 84/253/EEC of 10 April 1984 based on
Article 54 (3) (g) of the Treaty on the approval of persons responsible
for carrying out the statutory audits of accounting documents
 Council Directive 84/569/EEC of 27 November 1984 revising
the amounts expressed in ECU in Directive 78/660/EEC
 Council Directive 86/635/EEC of 8 December 1986 on the
annual accounts and consolidated accounts of banks and other financial
institutions
information to be published when a major holding in a listed company
is acquired or disposed of
 Council Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas awarded on
completion of professional education and training of at least three
years' duration
 Council Directive 89/117/EEC of 13 February 1989 on the
obligations of branches established in a Member State of credit
institutions and financial institutions having their head offices outside
that Member State regarding the publication of annual accounting
documents
46
 Council Directive 89/298/EEC of 17 April 1989 coordinating
the requirements for the drawing-up, scrutiny and distribution of the
prospectus to be published when transferable securities are offered to
the public
 Eleventh Council Directive 89/666/EEC of 21 December 1989
concerning disclosure requirements in respect of branches opened in a
Member State by certain types of company governed by the law of
another State
 Twelfth Council Company Law Directive 89/667/EEC of 21
December 1989 on single-member private limited-liability companies
 Council Directive 90/434/EEC of 23 July 1990 on the common
system of taxation applicable to mergers, divisions, transfers of assets
and exchanges of shares concerning companies of different Member
States
 Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member States
 Council Directive 90/604/EEC of 8 November 1990 amending
Directive 78/660/EEC on annual accounts and Directive 83/349/EEC
on consolidated accounts as concerns the exemptions for small and
medium-sized companies and the publication of accounts in ecus
annual accounts and consolidated accounts of insurance undertakings
 Council Directive 93/22/EEC of 10 May 1993 on investment
services in the securities field
 Council Directive 94/8/EC of 21 March 1994 amending
Directive 78/660/EEC as regards the revision of amounts expressed in
ecus
 Council Directive 1999/60/EC of 17 June 1999 amending
Directive 78/660/EEC as regards amounts expressed in ecus
Council of 28 May 2001 on the admission of securities to official stock
exchange listing and on information to be published on those securities
Council of 27 September 2001 amending Directives 78/660/EEC,
83/349/EEC and 86/635/EEC as regards the valuation rules for the
annual and consolidated accounts of certain types of companies as well
as of banks and other financial institutions
 Council Directive 2001/86/EC of 8 October 2001 supplementing
the Statute for a European company with regard to the involvement of
employees
47
Council of 28 January 2003 on insider dealing and market manipulation
(market abuse)
Council of 4 November 2003 on the prospectus to be published when
securities are offered to the public or admitted to trading and amending
Directive 2001/34/EC
 Council Directive 2003/72/EC of 22 July 2003 supplementing
the Statute for a European Cooperative Society with regard to the
involvement of employees
 Commission Directive 2003/124/EC of 22 December 2003
the Council as regards the definition and public disclosure of inside
information and the definition of market manipulation
 Commission Directive 2003/125/EC of 22 December 2003
the Council as regards the fair presentation of investment
recommendations and the disclosure of conflicts of interest
 Commission Directive 2004/72/EC of 29 April 2004
the Council as regards accepted market practices, the definition of
inside information in relation to derivatives on commodities, the
drawing up of lists of insiders, the notification of managers'
transactions and the notification of suspicious transactions
Council of 21 April 2004 on takeover bids
Council of 21 April 2004 on markets in financial instruments amending
Council Directives 85/611/EEC and 93/6/EEC and
Directive 2000/12/EC of the European Parliament and of the Council
and repealing Council Directive 93/22/EEC
Council of 15 December 2004 on the harmonisation of transparency
requirements in relation to information about issuers whose securities
are admitted to trading on a regulated market and amending Directive
2001/34/EC
Council of 26 October 2005 on cross-border mergers of limited liability
companies
c. Amending Directives
48
Directive 78/660/EEC on annual accounts and Directive 83/349/EEC
on consolidated accounts as regards the scope of those Directives
Directive 77/91/EEC on the formation of public limited- liability
companies and the maintenance and alteration of their capital
Council of 18 June 2003 amending Directives 78/660/EEC,
83/349/EEC, 86/635/EEC and 91/674/EEC on the annual and
consolidated accounts of certain types of companies, banks and other
financial institutions and insurance undertakings
Council of 15 July 2003 amending Council Directive 68/151/EEC, as
regards disclosure requirements in respect of certain types of
companies
 Council Directive 2005/19/EC of 17 February 2005 amending
Directive 90/434/EEC 1990 on the common system of taxation
applicable to mergers, divisions, transfers of assets and exchanges of
shares concerning companies of different Member States
Council of 13 November 2007 on payment services in the internal
market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and
2006/48/EC and repealing Directive 97/5/EC
3. Leading Cases
 To Directive 77/91/EEC: 32/74, 136/87, C-297/88, C-197/89, C-
106/89, C-97/96, 191/95, C-104/96
 To Directive 77/91/EEC: C-381/89, C-19/90, C-20/90, C-83/91,
C-134/91, C-135/91, C-441/93, C-42/95, C-367/96
 To Directive 78/660/EEC: C-234/94, C-272/97, C-275/97
 To Article 63 TFEU: C-503/99, C-483/99, C-367/98, C-
463/00C-98/01, C-174/04
 To 89/666/EEC: C-33/78
 To Article 49 TFEU: 81/87, C-212/97, C-208/00, C-167/01, C-
9/02
 To Regulation 2137/85/EEC: C-402/96
2.1.3.4. Cartel Law
1. Primary Law
 Articles 101-106 TFEU
49
2. Secondary Law
a. Regulations
the implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty
relating to the conduct of proceedings by the Commission pursuant to
Articles 81 and 82 of the EC Treaty
 Commission Regulation (EC) No 2658/2000 of 29 November
2000 on the application of Article 81(3) of the Treaty to categories of
specialisation agreements
 Commission Regulation (EC) No 2659/2000 of 29 November
research and development agreements
 Commission Regulation (EC) No 772/2004 of 27 April 2004 on
the application of Article 81(3) of the Treaty to categories of
technology transfer agreements
vertical agreements and concerted practices
 Commission Regulation (EC) No 1400/2002 of 31 July 2002 on
the application of Article 81(3) of the Treaty to categories of vertical
agreements and concerted practices in the motor vehicle sector
 Commission Regulation (EC) No 358/2003 of 27 February 2003
on the application of Article 81(3) of the Treaty to certain categories of
agreements, decisions and concerted practices in the insurance sector
 Council Regulation (EC) No 139/2004 of 20 January 2004 on
the control of concentrations between undertakings (the EC Merger
Regulation)
implementing Council Regulation (EC) No 139/2004 on the control of
concentrations between undertakings
 Council Regulation (EC) No 487/2009 of 25 May 2009 on the
application of Article 81(3) of the Treaty to certain categories of
agreements and concerted practices in the air transport sector
3. Leading Cases
 General: 27/76, C-68/94, C-30/95, 58/64, 23/67, T-374/94, T-
375/94, T-384/94, T-388/94, 89/85, 104/85, 114/85, 116/85, 117/85,
125/85, 129/85
50
 Article 101 TFEU: C-73695, 48/69, 40-48/73, 50/73, 54-56/73,
111/73, 113/73, 114/73, C-2/01, 3/02, C-7/95, 56/65, 161/84, T-62/38,
42/84, C-234/89
 Article 102 TFEU: 85/76, 322/81, C-62/86, C-333/94, 6/73,
7/73, C-241/91, C-242/91, 7/97, C-418/01
 Article 106 TFEU: C-41/90
 Protection of Industrial Property Rights: 15/74, 193/83
 Merger Control: 6/72, T-102/96, I-342/99, C-12/03
2.1.3.5. Commercial Law
1. Primary Law
 Free Movement of Goods (Articles 34-37 TFEU)
 Free Movement of Services (Articles 56-62 TFEU)
 Free Movement of Capital (Articles 63-66 TFEU)
 Freedom of Establishment (Articles 49-54 TFEU)
 Rules on Competition (Articles 101-106 TFEU)
2. Secondary Law
a. Regulations
the functioning of the internal market in relation to the free movement
of goods among the Member States
vertical agreements and concerted practices
 Commission Regulation (EC) No 1400/2002 of 31 July 2002 on
the application of Article 81(3) of the Treaty to categories of vertical
agreements and concerted practices in the motor vehicle sector
of the Council of 19 July 2002 on the application of international
accounting standards
b. Directives
 First Council Directive 68/151/EEC of 9 March 1968 on co-
ordination of safeguards which, for the protection of the interests of
51
with a view to making such safeguards equivalent throughout the
Community
 Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital
 Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to turnover
taxes - Common system of value added tax: uniform basis of
assessment
 Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 54 (3) (g) of the Treaty on the annual accounts of certain types
of companies
 Seventh Council Directive 83/349/EEC of 13 June 1983 based
on the Article 54 (3) (g) of the Treaty on consolidated accounts
 Eighth Council Directive 84/253/EEC of 10 April 1984 based on
Article 54 (3) (g) of the Treaty on the approval of persons responsible
for carrying out the statutory audits of accounting documents
coordination of the laws of the Member States relating to self-
employed commercial agents
 Eleventh Council Directive 89/666/EEC of 21 December 1989
concerning disclosure requirements in respect of branches opened in a
Member State by certain types of company governed by the law of
another State
 Twelfth Council Company Law Directive 89/667/EEC of 21
December 1989 on single-member private limited-liability companies
Council of 29 June 2000 on combating late payment in commercial
transactions
3. Leading Cases
 8/74, 32/74, 33/74, 33/78, 120/78, 139/80, 177/83, 340/87, C-
339/89, C-76/90, C-71/91, C-178/91, C-267/91, C-268/91, 384/93, C-
111/94, C-55/94, C-97/96, C-265/95, C-104/96, C-212/97, C-255/97,
C-412/97, C-56/98, C-376/96, C-35/98, C-281/98, C-456/98, C-443/98,
C-381/98, C-405/98, C-206/99, C-86/00, C-182/00, C-447/00, C-
264/00, C-483/99, C-388/01, C-154/00, C-148/03
2.1.3.6. Intellectual Property Law
1. Primary Law
 Articles 18, 34, 36, 53 (2), 56, 62, 115, 118 TFEU
52
2. Secondary Law
a. Copyright Law
 Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programs
 Council Directive 92/100/EEC of 19 November 1992 on rental
right and lending right and on certain rights related to copyright in the
field of intellectual property
 Council Directive 93/83/EEC of 27 September 1993 on the
coordination of certain rules concerning copyright and rights related to
copyright applicable to satellite broadcasting and cable retransmission
 Council Directive 93/98/EEC of 29 October 1993 harmonizing
the term of protection of copyright and certain related rights
Council of 11 March 1996 on the legal protection of databases
Council of 22 May 2001 on the harmonisation of certain aspects of
copyright and related rights in the information society
Council of 27 September 2001 on the resale right for the benefit of the
author of an original work of art
Council of 12 December 2006 on rental right and lending right and on
certain rights related to copyright in the field of intellectual property
Council of 12 December 2006 on the term of protection of copyright
and certain related rights
b. Trade Marks and Geographical Indications

 Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark
 Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
protection of geographical indications and designations of origin for
agricultural products and foodstuffs
 First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade marks
 Council Regulation (EC) No 422/2004 of 19 February 2004
amending Regulation (EC) No 40/94 on the Community trade mark
c. Designs
53
Community designs
 Commission Regulation (EC) No 2245/2002 of 21 October 2002
implementing Council Regulation (EC) No 6/2002 on Community
designs
Council of 13 October 1998 on the legal protection of designs
d. Patent Law
 Council Regulation (EEC) No 1768/92 of 18 June 1992
concerning the creation of a supplementary protection certificate for
medicinal products
 Regulation (EC) No 1610/96 of the European Parliament and of
the Council of 23 July 1996 concerning the creation of a supplementary
protection certificate for plant protection products
Council of 6 July 1998 on the legal protection of biotechnological
inventions
e. Plant Variety Rights

 Council Regulation (EC) No 2100/94 of 27 July 1994 on
Community plant variety rights
f. Horizontal Secondary Law

 Council Regulation (EC) No 1383/2003 of 22 July 2003
concerning customs action against goods suspected of infringing
certain intellectual property rights and the measures to be taken against
goods found to have infringed such rights
Council of 29 April 2004 on the enforcement of intellectual property
rights
3. Leading Cases
 Copyright Law: 56/64, 58/64, 78/70, 127/73, 51/75, 55/80,
57/80, 62/79, 262/81, 402/85, 341/87, 395/87, C-92/92, C-326/92, C-
360/00, C-241/91, C-242/91, C-481/01, C-418/01, C-203/02, C-338/02
 Trade Marks: 192/73, 15/74, 119/75, C-9/93, C-10/89, C-
251/95, C-355/96, C-39/97, C-63/97, C-108/97, C-109/97, C-300/98,
C-392/98, C-206/01, C-292/00, C-112/99, C-273/00, C-283/01, C-
104/01
54
 Designs: 144/81, 238/87
 Patent Law: 24/67, 15/74, 187/80, 19/84, 434/85, 35/87, C-
267/95, C-268/95
 Plant Variety Rights: 258/78, C-182/01, C-336/02
2.1.3.7. Environmental Law
1. Primary Law
 Articles 11, 191-193 TFEU
2. Secondary Law
a. Horizontal Issues
Council of 19 November 2008 on the protection of the environment
through criminal law
b. Access to Information and Public Participation

of the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents
Council of 22 June 1998 laying down a procedure for the provision of
information in the field of technical standards and regulations
Council of 28 January 2003 on public access to environmental
information and repealing Council Directive 90/313/EEC
of the Council of 6 September 2006 on the application of the provisions
of the Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in
Environmental Matters to Community institutions and bodies
c. Environmental Impact Assessment and Environmental Liability

 Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private projects on the
environment
 Directive 2004/35/CE of the European Parliament and of the
Council of 21 April 2004 on environmental liability with regard to the
prevention and remedying of environmental damage
55
d. Nature Conservation
 Council Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds
 Council Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and flora
 Council Regulation (EC) No 338/97 of 9 December 1996 on the
protection of species of wild fauna and flora by regulating trade therein
e. Industrial Plants
Council of 23 October 2001 on the limitation of emissions of certain
pollutants into the air from large combustion plants
 Council Directive 96/61/EC of 24 September 1996 concerning
integrated pollution prevention and control
of the Council of 25 November 2009 on the voluntary participation by
organisations in a Community eco-management and audit scheme
(EMAS), repealing Regulation (EC) No 761/2001 and Commission
Decisions 2001/681/EC and 2006/193/EC
f. Traffic Emissions
 Council Directive 96/62/EC of 27 September 1996 on ambient
air quality assessment and management
 Council Directive 1999/30/EC of 22 April 1999 relating to limit
values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen,
particulate matter and lead in ambient air
Council of 25 June 2002 relating to the assessment and management of
environmental noise - Declaration by the Commission in the
Conciliation Committee on the Directive relating to the assessment and
management of environmental noise
g. Climate Change and Protection of the Ozone Layer

 2002/358/EC: Council Decision of 25 April 2002 concerning the
approval, on behalf of the European Community, of the Kyoto Protocol
to the United Nations Framework Convention on Climate Change and
the joint fulfilment of commitments hereunder
Council of 13 October 2003 establishing a scheme for greenhouse gas
56
emission allowance trading within the Community and amending
Council Directive 96/61/EC
of the Council of 29 June 2000 on substances that deplete the ozone
layer
 Decision No 280/2004/EC of the European Parliament and of
the Council of 11 February 2004 concerning a mechanism for
monitoring Community greenhouse gas emissions and for
implementing the Kyoto Protocol
h. Water Protection
 Council Directive 76/464/EEC of 4 May 1976 on pollution
caused by certain dangerous substances discharged into the aquatic
environment of the Community
Council of 23 October 2000 establishing a framework for Community
action in the field of water policy
i. Products
 Council Directive 67/548/EEC of 27 June 1967 on the
approximation of laws, regulations and administrative provisions
relating to the classification, packaging and labelling of dangerous
substances
 Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market
 Council Regulation (EEC) No 793/93 of 23 March 1993 on the
evaluation and control of the risks of existing substances
 Council Directive 96/82/EC of 9 December 1996 on the control
of major-accident hazards involving dangerous substances
Council of 16 February 1998 concerning the placing of biocidal
products on the market
of the Council of 28 January 2003 concerning the export and import of
dangerous chemicals
of the Council of 29 April 2004 on persistent organic pollutants and
amending Directive 79/117/EEC
of the Council of 18 December 2006 concerning the Registration,
Evaluation, Authorisation and Restriction of Chemicals (REACH),
establishing a European Chemicals Agency, amending Directive
57
1999/45/EC and repealing Council Regulation (EEC) No 793/93 and
Commission Regulation (EC) No 1488/94 as well as Council Directive
76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC,
93/105/EC and 2000/21/EC
of the Council of 17 June 2008 concerning the export and import of
dangerous chemicals
j. Biotechnology
 Council Directive 90/219/EEC of 23 April 1990 on the
contained use of genetically modified micro-organisms
Council of 12 March 2001 on the deliberate release into the
environment of genetically modified organisms and repealing Council
Directive 90/220/EEC
of the Council of 15 July 2003 on transboundary movements of
genetically modified organisms
of the Council of 22 September 2003 on genetically modified food and
feed
of the Council of 22 September 2003 concerning the traceability and
labelling of genetically modified organisms and the traceability of food
and feed products produced from genetically modified organisms and
amending Directive 2001/18/EC
k. Waste Management
 Council Directive 75/442/EEC of 15 July 1975 on waste
 Council Regulation (EEC) No 259/93 of 1 February 1993 on the
supervision and control of shipments of waste within, into and out of
the European Community
 Council Directive 1999/31/EC of 26 April 1999 on the landfill
of waste
Council of 4 December 2000 on the incineration of waste
Council of 27 January 2003 on waste electrical and electronic
equipment
Council of 5 April 2006 on waste (in force until 12.10.2010)
58
of the Council of 14 June 2006 on shipments of waste
Council of 19 November 2008 on waste and repealing certain
Directives
3. Leading Cases
 Fundamental Issues: C-180/96
 Competences: C-379/92, C-473/97
 Execution: C-56/90, C-387/97
 Goals and Principles: 240/83, C-293/97
 Legal Protection: C-321/95P, C-321/96, C-3/96
 Horizontal Environmental Law: C-293/97, C-347/97
 Nature Conservation and Species Protection: C-44/95, C-96/98
 Water Protection: C-340/96
 Air Pollution: 361/88
 Product Law: 302/86, C-6/99
 Waste Management: C-2/90, C-155/91, 365/97
 International Aspects: 239/03
2.1.3.8. Liberal Professions
1. Primary Law
 Prohibition of Discrimination: Article 18 TFEU
 Freedom of Establishment: Article 43 TFEU
 Free Movement of Services: Article 56 TFEU
2. Secondary Law
a. Horizontal Rules
 Council Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas awarded on
completion of professional education and training of at least three
years' duration
 Council Directive 92/51/EEC of 18 June 1992 on a second
general system for the recognition of professional education and
training to supplement Directive 89/48/EEC
Council of 14 May 2001 amending Council Directives 89/48/EEC and
59
92/51/EEC on the general system for the recognition of professional
qualifications and Council Directives 77/452/EEC, 77/453/EEC,
78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC,
80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC
concerning the professions of nurse responsible for general care, dental
practitioner, veterinary surgeon, midwife, architect, pharmacist and
doctor
Council of 7 September 2005 on the recognition of professional
qualifications
Council of 12 December 2006 on services in the internal market
b. Healthcare Professions in General

Council of 14 May 2001 amending Council Directives 89/48/EEC and
92/51/EEC on the general system for the recognition of professional
qualifications and Council Directives 77/452/EEC, 77/453/EEC,
78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC,
80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC
concerning the professions of nurse responsible for general care, dental
practitioner, veterinary surgeon, midwife, architect, pharmacist and
doctor
 Council Directive 89/594/EEC of 30 October 1989 amending
Directives 75/362/EEC, 77/452/EEC, 78/686/EEC, 78/1026/EEC and
80/154/EEC relating to the mutual recognition of diplomas, certificates
and other evidence of formal qualifications as doctors, nurses
responsible for general care, dental practitioners, veterinary surgeons
and midwives, together with Directives 75/363/EEC, 78/1027/EEC and
80/155/EEC concerning the coordination of provisions laid down by
Law, Regulation or Administrative Action relating to the activities of
doctors, veterinary surgeons and midwives
 Council Directive 81/1057/EEC of 14 December 1981
supplementing Directives 75/362/EEC, 77/452/EEC, 78/686/EEC and
78/1026/EEC concerning the mutual recognition of diplomas,
certificates and other evidence of the formal qualifications of doctors,
nurses responsible for general care, dental practitioners and veterinary
surgeons respectively, with regard to acquired rights
c. Pharmacists
 Council Directive 85/432/EEC of 16 September 1985
concerning the coordination of provisions laid down by Law,
60
Regulation or Administrative Action in respect of certain activities in
the field of pharmacy
 Council Directive 85/433/EEC of 16 September 1985
concerning the mutual recognition of diplomas, certificates and other
evidence of formal qualifications in pharmacy, including measures to
facilitate the effective exercise of the right of establishment relating to
certain activities in the field of pharmacy
d. Doctors
 Council Directive 86/457/EEC of 15 September 1986 on
specific training in general medical practice
 Council Directive 93/16/EEC of 5 April 1993 to facilitate the
free movement of doctors and the mutual recognition of their diplomas,
certificates and other evidence of formal qualifications
e. Midwives
 Council Directive 80/154/EEC of 21 January 1980 concerning
the mutual recognition of diplomas, certificates and other evidence of
formal qualifications in midwifery and including measures to facilitate
the effective exercise of the right of establishment and freedom to
provide services
 Council Directive 80/155/EEC of 21 January 1980 concerning
the coordination of provisions laid down by Law, Regulation or
Administrative Action relating to the taking up and pursuit of the
activities of midwives
f. Nurses
 Council Directive 77/452/EEC of 27 June 1977 concerning the
mutual recognition of diplomas, certificates and other evidence of the
formal qualifications of nurses responsible for general care, including
measures to facilitate the effective exercise of this right of
establishment and freedom to provide services
 Council Directive 77/453/EEC of 27 June 1977 concerning the
coordination of provisions laid down by Law, Regulation or
Administrative Action in respect of the activities of nurses responsible
for general care
g. Dentists
mutual recognition of diplomas, certificates and other evidence of the
61
formal qualifications of practitioners of dentistry, including measures
to facilitate the effective exercise of the right of establishment and
freedom to provide services
coordination of provisions laid down by Law, Regulation or
Administrative Action in respect of the activities of dental practitioners
h. Lawyers
 Council Directive 77/249/EEC of 22 March 1977 to facilitate
the effective exercise by lawyers of freedom to provide services
Council of 16 February 1998 to facilitate practice of the profession of
lawyer on a permanent basis in a Member State other than that in which
the qualification was obtained
i. Architects
 Council Directive 85/384/EEC of 10 June 1985 on the mutual
recognition of diplomas, certificates and other evidence of formal
qualifications in architecture, including measures to facilitate the
effective exercise of the right of establishment and freedom to provide
services
3. Leading Cases
 2/74, 33/74, 107/63, C-41/90, C-340/89, C-55/94, C-267/99, C-
309/99, C-35/99, C-313/03, C-359/09
62
3. Part. Criminal Law
63
I.
3.1. European Arrest Warrant (EAW)
3.1.1. Introductory remarks on the EAW8
The institution of the European Arrest Warrant has been regulated in the Framework
Decision (2002/584/JHA) of 13 June 2002 on the European Arrest Warrant and the
surrender procedures between Member States9. It entered into force on 31 December
2003 for the 15 so-called old Member States of the EU, and after enlargement on 1 May
2004 for the ten new Member States, and finally on 1 January 2007 in relation to
Romania and Bulgaria. The European Arrest Warrant (EAW) is now widely used to
secure the arrest and surrender of suspected criminals across the European Union and has
a key role to play in the fight against terrorism and in bringing those accused of serious
crimes to justice. It has replaced the traditional formerly existing extradition system by
requiring each national judicial authority (the executing judicial authority) to recognise,
ipso facto, and with a minimum of formalities, requests for the surrender of a person
made by the judicial authority of another Member State (the issuing judicial authority).
Such a warrant may be issued by a national issuing judicial authority if the person whose
return is sought is accused of an offence for which the maximum period of the penalty is
at least a year in prison, or if he or she has been sentenced to a prison term of at least four
months. A decision by the judicial authority of a member state to require the arrest and
return of a person should therefore be executed as quickly and as easily as possible in the
other Member States of the European Union. The European Arrest Warrant means faster
and simpler surrender procedures and no more political involvement. It also means that
Member States can no longer refuse to surrender to another Member State their own
citizens who have committed a serious crime, or who are suspected of having committed
such a crime in another EU country, on the ground that they are nationals. Simplifying
and improving the surrendering procedure between EU Member States was made
possible by a high level of mutual trust and cooperation between countries who share the
same highly demanding conception of the rule of law.
An EAW may be issued by a national court if the person whose return is sought is
accused of an offence for which the penalty is at least over a year in prison or if he or she
has been sentenced to a prison term of at least four months. Its purpose is to replace
lengthy extradition procedures with a new and efficient way of bringing back suspected
criminals who have absconded abroad and for people convicted of a serious crime who
have fled the country, in order to forcibly transfer them from one Member State to
another for conducting a criminal prosecution or executing a custodial sentence or
detention order. The EAW enables such people to be returned within a reasonable time
for their trial to be completed or for them to be put in prison to serve their sentence.
8
See: The Report of the European Commission on:
http://ec.europa.eu/justice_home/fsj/criminal/assistance/fsj_criminal_assistance_en.htm
9
OJ Nr. L 190 from 18/07/2002 p. 0001 – 0020.
64
The EAW is based on the principle of mutual recognition of judicial decisions. This
means that a decision by the judicial authority of a member state to require the arrest and
return of a person should be recognized and executed as quickly and as easily as possible
in the other Member States.
The European arrest warrant introduces some novelties compared to the former
extradition procedures:
The State in which the person is arrested has to return him/her to the State where the
EAW was issued within a maximum period of 90 days of the arrest. If the person gives its
consent to the surrender, the decision shall be taken within 10 days
The dual criminality principle - which means that both the country requesting
extradition and the country that should arrest and return the alleged criminal, recognize
and accept that what he or she is alleged to have done, is a crime - is abolished for 32
serious categories of offences. These include participation in a criminal organisation,
terrorism, trafficking in human beings, sexual exploitation of children and child
pornography, illicit trafficking in arms, ammunition and explosives, corruption, fraud
including fraud pertaining to the financial interest of the European Union, money
laundering and counterfeiting of money including the euro. European arrest warrants
issued in respect of crimes or alleged crimes on this list have to be executed by the
arresting state irrespective of whether or not the definition of the offence is the same,
providing that the offence is serious enough and punished by at least 3 years'
imprisonment in the Member State that has issued the warrant. For offences which are not
in the list or beyond the 3 years' threshold, the dual criminality principle still applies.
In extradition procedures, the final decision on whether to surrender the person or not, is
a political decision. The EAW procedure abolished the political stage of extradition.
This means that the execution of these warrants is simply a judicial process under the
supervision of the national judicial authority which is, inter alia, responsible for ensuring
the respect of fundamental rights.
EU countries can no longer refuse to surrender their own nationals. The EAW is
based on the principle that EU citizens shall be responsible for their acts before national
courts across the EU. This means that it will not be possible in principle for a Member
State to refuse to surrender one of its citizens who has committed a crime in another EU
state on the ground that he or she is a national. On the other hand, it will be possible for a
Member State, while surrendering this person, to ask for their return on its territory to
serve its sentence in order to facilitate future reintegration.
The EAW ensures a good balance between efficiency and strict guarantees that the
arrested person's fundamental rights are respected. In implementing the framework
decision on the EAW, Member States and national courts have to respect the provisions
of the European Convention on Human Rights and to ensure that it is respected.
Anyone arrested under an EAW may have a lawyer, and if necessary an interpreter, as
provided by the law of the country where he or she has been arrested. If judgement was
65
given in his absence against anyone later arrested under an EAW, he has to be retried in
the country requiring his return.
The surrender of the person can be refused on several grounds (see Arts. 3 and 4 of the
Framework Decision) among which:
 the "ne bis in idem" or double jeopardy principle. This means that the
person will not be returned to the country that issued the arrest warrant if he or
she has already been tried for the same offence.
 amnesty: A Member State can refuse to return a person if an amnesty
covers the offence in its national legislation.
 statutory limitation: A Member State can refuse to return a person if the
offence is statute barred according to its law (which means that the time limit
has been passed and that it is too late under that country's law to prosecute the
person).
 the age of the person: A Member State can also refuse to return a person
who is a minor and has not reached the age of criminal responsibility under its
national laws.
It is also possible for a Member State to execute directly the sentence decided in another
Member State instead of surrendering the person to that Member State.
Where someone arrested under an EAW may be sentenced to life imprisonment, the state
executing the EAW may insist, as a condition of executing the arrest warrant, that if
sentenced to life, the accused person will have a right to have its personal situation
periodically reconsidered.
Death penalty: There is no mention of the death penalty as the death penalty has been
abolished in the European Union.
The European Arrest Warrant only applies within the territory of the EU (27 as from 1
January 2007). Relations with third countries are still governed by extradition rules.
If a person has been surrendered to another EU country according to the EAW and is
afterward demanded by a third country, the Member State which authorized the surrender
in the first place shall be consulted.
Extradition is currently ruled by the European Convention on extradition from
1957 which was negotiated in the framework of the Council of Europe.
European judicial cooperation in criminal matters is also dealt with by international
organisations like the Council of Europe and the United Nations, as well as being
included in work related to the enlargement of the EU and to the transatlantic dialogue
with the United States and Canada.
The improvements due to the arrest warrant also benefit the persons concerned, who in
practice now consent to their surrender in more than half the cases reported. The
Framework Decision is more precise than previous provisions, as regards for instance the
ne bis in idem principle, the right to the assistance of a lawyer or the right to the
66
deduction from the term of the sentence of the period of detention served. Furthermore,
as a result of the speed with which it is executed, the arrest warrant contributes to better
observance of the "reasonable time limit" principle.
This overall success should not make one lose sight of the effort that is still required by
some Member States to comply fully with the Framework Decision. A few Member
States considered that, with regard to their nationals, they should reintroduce a systematic
check on double criminality or convert their sentences. Noticeable in some Member
States is the introduction of supplementary grounds for refusal, which are contrary to the
Framework Decision, such as political reasons, reasons of national security or those
involving examination of the merits of a case. Moreover, there are cases in certain
Member States where the decision-making powers conferred on executive bodies are not
in line with the Framework Decision. Lastly, by ruling out the warrant's application to
acts that occurred before a given date, a few Member States did not comply either with
the Framework Decision. The extradition requests which they continue to present
therefore risk being rejected by the other Member States.
3.1.2. Form
In order to effectively issue an EAW the competent judicial bodies of the Member States
are obliged to use a form, which is an Annex to the Framework decision:
See: Attachment I-A, pages 49-54
The EAW form is also available on: http://www.ejn-crimjust.europa.eu/forms.aspx
3.1.3. How to fill the form

For comprehensive advice how to fill and how to transmit the EAW-form:
See: Attachment I-A, Pages 16-18, 55-75
3.1.4. Remarks and explanations10

The arrest warrant is a really well-working, efficient and simple to handle instrument. Its use
has been growing year by year, in practice making it easy for judges to get persons handed
over within binding time limits that are much shorter than with conventional extradition
procedures. The total number of requests exchanged between Member States has been rising
sharply every year. The European arrest warrant has therefore not only virtually replaced the
extradition procedure within the European Union, but the use made of it, because of its
advantages, is now much more widespread. For the whole of 2005, nearly 6 900 warrants
10
See: Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13
June 2002 on the European arrest warrant and the surrender procedures between Member States - Commission
document COM(2007) 407 final.
67
were issued by the 23 Member States that sent in figures, twice as many as in 2004.
Unofficial figures for 2006 confirm this upward trend from year to year. The warrants were
transmitted mainly by Interpol (58% of all those issued) and/or by the Schengen Information
System, in the 13 Member States with access to it (52% of the same total). In most of the
remaining cases the European arrest warrants were simply sent direct between the Member
States concerned. The figure communicated by 23 Member States for the total number of
European arrest warrants received was over 8 500, i.e. more than the number issued, since a
European arrest warrant can be sent to more than one Member State. In 2005 over 1 770
wanted persons were arrested on the basis of a European arrest warrant in the 23 Member
States considered above. Of those arrested over 86% were actually surrendered to the issuing
Member State (1 532 persons surrendered) (60% in 2004). Half of those surrendered in 2005
had given their consent to the procedure (a third in 2004). And over a fifth of those
surrendered in 2005 within the European Union were nationals (or residents) of the Member
State that agreed to their surrender, a guarantee under Article 5(3) of the Framework Decision
having been required in half the cases. The other types of guarantees which may be required
in cases of sentencing in absentia or life sentences, are rarely asked for, except for certain
countries such as NL that demands it systematically, thereby causing problems for the
executing countries. Overall the figures available for 2005 confirm that with the European
arrest warrant, surrenders are effected within much shorter time limits than in the past. On
average the time taken to execute requests, which used to be around a year under the old
extradition procedure, has been reduced to under 5 weeks (43 days to be precise), and even 11
days in the frequent cases where the person consents to surrender (the corresponding figures
for 2004 being around 45 and 15 days respectively). However, this average must not hide the
fact that certain countries (IE and UK) take much longer and even exceed the maximum time
limits set in the Framework Decision, something the Commission very much regrets.
3.2. European Evidence Warrant (EEW)
3.2.1. Introductory remarks on the EEW11

This instrument has been regulated in the Framework Decision 2008/978/JHA of 18
December 2008 on the European evidence warrant for the purpose of obtaining objects,
documents and data for use in proceedings in criminal matters 12. It is remarkable that this
framework decision has still not entered into force since the Member States have a time
limit for its implementation until 31 January 20011. At the recent the topics of mutual
assistance in criminal matters concerning also the gathering of evidence regulates i.a. the
EU Convention on Mutual Assistance in Criminal Matters 13. It is therefore necessary to
make clear that the European evidence warrant is the first step towards a single mutual
11
See: Remarks by the European Commission on:
http://www.consilium.europa.eu/cms3_Applications/applications/PolJu/details.asp?
lang=EN&cmsid=545&id=66
12
Council Framework Decision of 18 December 2008 on the European evidence warrant for the purpose of
obtaining objects, documents and data for use in proceedings in criminal matters (OJ L 350, 30.12.2008, p. 72);
68
recognition instrument that would in due course replace the entire existing mutual
assistance regime. It should be the first stage, which provides for the obtaining of
evidence that already exists and that is directly available. Once the EEW Framework
decision has been implemented in the Member States, in the remaining scope of mutual
assistance matters the EU Convention on Mutual Assistance in Criminal Matters shall be
applicable.
The European evidence warrant is defined in Article 1 of the above Framework decision
as “a judicial decision issued by a competent authority of a Member State with a view
to obtaining objects, documents and data from another Member State for use in
proceedings referred to in Article 5”.
Article 4 thereof shapes the scope of the EEW, highlighting that the executing authority
shall not be required to:
a. conduct interviews, take statements or initiate other types of hearings
involving suspects, witnesses, experts or any other party;
b. carry out bodily examinations or obtain bodily material or biometric
data directly from the body of any person, including DNA samples or
fingerprints;
c. obtain information in real time such as through the interception of
communications, covert surveillance or monitoring of bank accounts;
d. conduct analysis of existing objects, documents or data; and
e. obtain communications data retained by providers of a publicly
available electronic communications service or a public communications
network.
On the contrary, Article 4(4) provides that an EEW may be requested where the objects,
documents of data are already in the possession of the executing authority before the
warrant is issued. In addition the EEW may cover taking statements from persons present
during the execution of the EEW and directly related to the subject of the EEW.
Recognition of EEWs must be undertaken without any further formalities and the
executing authority must take the necessary steps towards execution “forthwith” and in
the same manner as would be undertaken where the authority of the executing State
sought to obtain the requested items. The executing State is responsible for choosing the
methods for the provision of the items in question in accordance with its own laws. In
13
See: The Convention established by the Council in accordance with Article 34 of the Treaty on European
Union, on Mutual Assistance in Criminal Matters between Member States of the European Union, 29 May 2000,
OJ C 197
69
addition it is up to the executing State also to decide whether coercive measures are
necessary to provide assistance.
Article 11(2) states that “Any measures rendered necessary by the EEW shall be taken in
accordance with the applicable procedural rules of the executing State”.
However, Article 12 provides that the issuing authority may lay down formalities and
procedures to be followed in the execution of the EEW.
The grounds for non-recognition and non-execution are set out in Article 13. Notable
grounds are: double jeopardy, dual criminality (aside from those listed in Article 14 for
which the rule of double criminality has been abolished), privilege or immunity, and
national security interests. Article 15 lays down deadlines for the execution of EEWs. It
states that any decision to refuse recognition or execution must be taken within 30 days of
receipt of the EEW by the competent authority. Subject to the postponement provisions
laid down in Article 16, possession of the requested materials should be taken no later
than 60 days after the receipt of the EEW by the executing authority.
Into the bargain, the 27th recital in the Preamble envisages refusal to execute an EEW
which “has been issued for the purpose of prosecuting or punishing a person on account
of his or her sex, racial or ethnic origin, religion, sexual orientation, nationality, language,
or political opinions or [where] that person’s position may be prejudiced for any of these
reasons.”
The EEW shall coexist with existing mutual assistance procedures, but such
coexistence should be considered transitional until the types of evidence-gathering
excluded from the scope of this Framework Decision are also the subject of a mutual
recognition instrument, the adoption of which would provide a complete mutual
recognition regime to replace mutual assistance procedures.”14 It might be remarked that
all of the means were previously available under national legislations and other
international agreements. The only significant difference is the establishment of time
limits.
The drawback of this principle is that there will now work within the European Union
two separate mutual assistance systems operating side by side, the quiet limited EU
Framework Decision and the more extensive Council of Europe system. Whereas both
systems will apply to two different legal assistance situations: the EEW in the legal traffic
within the Member States, and the second one in matters involving the EU-Member
States on the one hand and the non Member States on the other hand.
It should be summarised that the European Evidence Warrant, because of its limited
scope of application, cannot be issued for the purpose of gathering, generating or
evaluating evidence abroad as for example interviewing suspects or witnesses or
obtaining information in real time, such as interception of communications or monitoring
14
See: Preamble, 25th Recital
70
of bank accounts, as these types of evidence – although directly available – do not
already exist. Nor can a European Evidence Warrant be issued for the purpose of for
example conducting analyses of existing objects documents or data or obtaining bodily
material, such as DNA samples or fingerprints, as these types of evidence – although
already existing – are not directly available without further investigation or
examination15.
3.2.2. Form
Article 5 of the Framework decision on EEW ensures that the European Evidence
Warrant will be issued in accordance with the standard Form A in the Annex to the
Framework Decision.
Please find the Form A in Attachment II-B, p. 49-66.

Developing common European multi-language forms that could be used to request
information on existing criminal records. By using such forms, practitioners could
send a demand for information to the competent authorities of all other EU [Member
States] to find out whether a person they are dealing with has a criminal history there.
It must be signed, and its contents certified as accurate, by the issuing authority (i.e. by
a judge, investigating magistrate or prosecutor).
The European Evidence Warrant must be translated by the issuing State into the
official language or one of the official languages of the executing State. The executing
State may accept translations into other official EU languages by submitting a
declaration to the General Secretariat of the Council. This is the same approach as in
other mutual recognition instruments, including for the European Arrest
Warrant.
Since the time limit for implementation of the EEW has not yet elapsed there is no
practice concerning the application of this instrument.
Please find enclosed the Explanatory Memorandum to the Proposal for the EEW
Framework Decision16, Attachment II-A.
15
See: Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its
admissibility COM(2009) 624 final.
16
See: COM(2003) 688 final
71
3.2.4. Remarks and explanations
The European evidence warrant has clearly made obvious a commitment to bringing
co-operation a step further. However, it remains to be seen how its implementation
will be effected. The coexistence of a number of related mechanisms for the transfer of
evidence is likely to create operational difficulties and unfortunately until the EEW
provides a comprehensive regime it will merely add to rather than replace the
multiplicity of instruments. Concerns regarding sovereignty could mean that the
development of a complete mutual assistance regime could be a politically challenging
process. However, there seems to be no real advantage in the piecemeal approach now
adopted, and many disadvantages. It is unfortunate that implementation of the EEW
was not left to await agreement on a comprehensive regime. Taking into consideration
that the Lisbon Treaty has finally completed the ratification process it is likely that it
will go some way in assisting this process, but for the moment the future process
remains uncertain.
3.3. Freezing and Confiscation Order (FCO)
3.3.1. Introductory remarks on the FCO17
Throughout the European Union, Member States are able to freeze and confiscate
property related to the commission of an offence. This has become increasingly
important as depriving criminals of their assets has become the focus. However, for
legislation to remain effective, closer co-operation between judicial authorities of
Member States is required in particular owing to the increasing transnational nature of
crime, especially organised crime. With this in mind two Framework Decisions
applying the principle of mutual recognition to orders freezing property or evidence
and to confiscation orders will enable a Member State to send such orders to another
Member State and have them executed without further formality.
Traditional judicial cooperation in criminal matters is based on a variety of
international legal instruments. These are mainly characterised by the 'request'
principle where one sovereign State makes a request to another sovereign State, which
then decides whether or not to comply with it. This system is both slow and complex.
Modern criminal behaviour seeks to take advantage of these inefficiencies by both
carrying out criminal activities across borders and by acquiring assets in a different
country to that where the criminal activity occurred.
Two Framework Decisions are designed to combat this problem: The Framework
Decision on the execution in the European Union of orders freezing property or
17
For these general remarks see:
http://ec.europa.eu/justice_home/fsj/criminal/recognition/fsj_criminal_confiscation_en.htm
72
evidence18 and the Framework Decision on the application of the principle of
mutual recognition to confiscation orders19. Both will allow a judicial authority of
one Member State to send a relevant order direct to the judicial authority of another
Member State where it will be recognised and executed without further formality,
unless one of the grounds for non-recognition is invoked.
The grounds common to both types of order are where the certificate accompanying
the decision is incomplete, where a decision has already been made against the person
for the same acts (ne bis in idem or double jeopardy), where the principle of dual
criminality applies, where there is immunity or privilege. For confiscation orders non-
recognition may also occur where the rights of an interested party make it impossible
to execute the order, where the decision was made in absentia, where there is an issue
of territoriality, where the order is issued under extended confiscation powers and
where there is a statutory time limitation.
A list is provided in both instruments of the offences for which the principle of dual
criminality does not apply. Member States are required to put in place arrangements to
ensure that legal remedies exist for any interested party, although substantial reasons
for issuing the order cannot be examined in the executing state. In relation to freezing
orders, these must be for the purposes of either securing evidence or for subsequent
confiscation of the property. The property itself must be either the proceeds of an
offence, have been used in an offence or be the object of an offence. For confiscation
orders the Framework Decision provides rules on the disposal of the confiscated
property and states that unless the value of the assets are above a certain amount the
executing state will keep the property. Above that value the assets are shared equally.
With the implementation of both these instruments an efficient and effective system of
seizure and confiscation of criminal assets will continue the fight against crime whilst
continuing to safeguard the interests of European citizen
3.3.2. Freezing Orders
 The Council Framework Decision of 22 July 2003 on the execution in the EU
of orders freezing property or evidence2021.
The Council adopted this framework decision in 2003 on an initiative by Belgium,
France and Sweden. The purpose of the framework decision is to establish the rules
under which a Member State is to recognise and execute in its territory a freezing
18
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of
orders freezing property or evidence (OJ L 196/2003 p. 45-55)
19
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual
recognition to confiscation orders L 328 p. 59-78.
20
Council Framework Decision of 22 July 2003 on the execution in the EU of orders freezing property or
evidence (OJ L 196, 2.8.2003, p. 45)
21
See also: Report from the Commission of 22 December 2008 based on Article 14 of the Council Framework
Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or
evidence [COM(2008) 885 final – Not published in the Official Journal].
73
order issued by a judicial authority of another Member State in the framework of
criminal proceedings22.
Mutual recognition of pre-trial orders
The Council extends the mutual recognition principle to pre-trial orders freezing
property or evidence. "Freezing order" means any measure taken by a judicial
authority in a Member State to prevent the destruction, transformation, displacement,
etc. of property. The evidence to which the framework decision applies means objects,
documents or data that could be produced as evidence in criminal proceedings.
The state that has made, validated or in any way confirmed a freezing order in the
framework of criminal proceedings is called the "issuing state". The "executing state"
is the Member State in whose territory the property or evidence is located.
Decisions executed without verification of double criminality
Article 3 of the framework decision lists a series of serious offences. They are not
subject to verification of the double criminality of the act if they are punishable in the
issuing state by a custodial sentence of a maximum period of at least three years. The
offences include:
 participation in a criminal organisation;
 terrorism;
 corruption and fraud;
 trafficking in human beings;
 racism;
 rape.
The list is not exhaustive; the Council may decide at any time to add further
categories. The Commission is to draft a report on the basis of which the Council is to
decide whether the list should be extended. The Council is to act unanimously after
consultation of the European Parliament.
Conditions for recognition and enforcement of a decision
For offences not included in the list, the executing state may subject the recognition
and enforcement of a freezing order to certain conditions:
 obtaining evidence: the acts for which the order was issued constitute an
offence under the laws of that state, whatever the constituent elements or however
described under the law of the issuing state;
 confiscation of property: the acts for which the order was issued must
constitute an offence which, under the laws of the executing state, allows for such
22
For this summary see:
http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/l160
09_en.htm
74
freezing, whatever the constituent elements or however described under the law of the
issuing state.
The execution procedure
The framework decision provides for a certificate for the request for execution. The
certificate is transmitted by the judicial authority that issued it directly to the
competent judicial authority for execution in the other Member State.
The competent judicial authorities of the executing state must recognise a freezing
order without any further formality being required and forthwith take the necessary
measures for its immediate execution. The executing state must also observe the
formalities and procedures expressly indicated by the competent judicial authority of
the issuing state in the execution of the freezing order. If such formalities and
procedures are contrary to the fundamental principles of law in the executing state, it
is not required to observe them.
The property must remain frozen in the executing state until that state has responded
definitively to any request.
Grounds for non-recognition or non-execution
The competent judicial authorities of the executing state may refuse to recognise or
execute the freezing order if:
 the certificate is not produced, is incomplete or manifestly does not correspond
to the freezing order;
 there is an immunity or privilege under the law of the executing state that
makes it impossible to execute the freezing order;
 it is instantly clear from the information provided in the certificate that
rendering judicial assistance would infringe the ne bis in idem principle – new
proceedings cannot be brought if a final judgment has already been given for the
same facts;
 the act on which the freezing order is based does not constitute an offence
under the law of the executing state. Two conditions apply here:
- the act must not be on the list of offences in Article 3 for which execution is
automatic;
- in relation to taxes or duties, customs and exchange, execution of the freezing
order may not be refused on the ground that the law of the executing state does
not impose the same kind of tax or duty or does not contain a tax, duty, customs
and exchange regulation of the same kind as the law of the issuing state.
The competent judicial authority of the executing state may postpone the
execution of a freezing order transmitted where:
 execution might damage an ongoing criminal investigation;
75
 the property or evidence concerned have already been subjected to a
freezing order in criminal proceedings;
 the property is already subject to an order made in the course of other
proceedings in the executing state. However, such an order must have priority
over subsequent national freezing orders in criminal proceedings under
national law.
Member States must ensure that any interested party, including bona fide third parties,
have legal remedies without suspensive effect against a freezing order.
 Council Framework Decision 2006/783/JHA of 6 October 2006 on the

application of the principle of mutual recognition to confiscation orders23.
This framework decision24 is intended to strengthen cooperation between Member
States by enabling judicial decisions to be executed immediately (principle of mutual
recognition).
For the purposes of this framework decision, each Member State must inform the
General Secretariat of the Council of the contact details of the issuing and executing
authorities responsible for enforcing domestic law. This information is made available
to all Member States.
Transmission, recognition and execution of the confiscation order
The confiscation order, together with a certificate of which a copy is annexed to the
framework decision and that must be translated into the official language of the
executing state or, if that state so decides, into another official language of the
European Union (EU), will be sent directly to the competent authority of the Member
State(s) where the natural or legal person concerned:
 has property or income;
 is normally resident or has its registered seat.
If the issuing authority cannot identify the authority in the executing state that is
competent to recognise and execute the order, the issuing state will make enquiries,
including through the European Judicial Network.
A written record of the transmission of the order must be available to the executing
Member State, which checks that it is genuine.
The transmission of a confiscation order does not restrict the right of the issuing state
to execute the order itself. Where appropriate, the competent authority in the executing
state must be informed.
23
For these introductory remarks see:
http://ec.europa.eu/justice_home/fsj/criminal/recognition/fsj_criminal_confiscation_en.htm
24
For these introductory remarks see:
http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/l332
02_en.htm
76
The executing state recognises and executes the order forthwith and without requiring
the completion of any formalities. The order is executed in accordance with the law of
the executing Member State and in the manner decided upon by its authorities. There
is one exception to this rule: a confiscation order applying to legal persons must be
executed even if the executing state does not recognise the criminal liability of legal
persons.
Where two or more requests for execution relate to the same person, the executing
state must take a decision on the execution order, bearing in mind the seriousness of
the offences and all other relevant circumstances.
The amounts confiscated are disposed of by the executing state as follows:
 if the amount is below EUR 10 000, it accrues to the executing state;
 if it is above that amount, 50% of it is transferred to the issuing state.
Both the executing and the issuing state can grant a pardon or amnesty, while the
issuing state alone is responsible for appeals lodged against the order.
Partial abolition of double criminality
Double criminality will no longer apply to certain offences (which must be punished
by the issuing Member State through the imposition of a custodial sanction of at least
three years). These include participation in a criminal organisation, trafficking in
human beings, child pornography, terrorism, illicit drug trafficking, computer-related
crime, corruption, fraud, racism and xenophobia, crimes within the jurisdiction of the
International Criminal Court, facilitating unauthorised entry and residence, murder,
illicit trade in human organs, trafficking in cultural goods, hostage-taking, racketeering
and extortion, armed robbery, forgery of administrative documents or means of
payment, trafficking in radioactive materials, trafficking in stolen vehicles, rape, etc.
For all types of crime other than those listed in the framework decision, the executing
state can continue to apply the principle of double criminality – that is, it can make
recognition and execution of the order dependent on the condition that the facts giving
rise to the confiscation order constitute an offence permitting confiscation in its law.
Reasons for rejection and delay
In some cases the executing Member State may refuse to recognise and execute the
order:
 if the certificate is missing or incomplete or does not correspond to the order;
 in accordance with the ne bis in idem principle (the same person has already
been the subject of a confiscation order for the same facts);
 if the executing state provides for immunities or privileges that prevent
execution;
 if the rights of the parties concerned and third persons acting in good faith
make it impossible to execute the order under the law of the executing state;
77
 if the judgment was given in the absence of the person concerned, unless s/he
was informed of the date and place of the trial and that an order may be handed
down there regardless of his/her presence, or if s/he was represented by a legal
counsellor, or if s/he did not contest the judgement nor request a retrial or an
appeal within the set time-limit;
 if the offences were committed wholly or partly within the territory of the
executing state or outside the territory of the issuing state and the law of the
executing state does not permit legal proceedings to be taken in respect of such
offences;
 if the confiscation order is out-dated under the national law of the executing
state.
The framework decision also provides for the postponement of the execution of
the order:
 when execution of the confiscation order might damage an on-going criminal
investigation or on-going criminal proceedings in the executing state;
 when it is deemed necessary to have the confiscation order translated.
3.3.3. Form
 A standard form called “Certificate” for freezing orders is
provided for in article 9 of the Council Framework Decision
2003/577/JHA, see Attachment III-A;
 A standard form called “Certificate” is foreseen for mutual
recognition as set out in article 4 of the Council Framework Decision
2006/783/JHA, see Attachment III-B;
3.3.4. How to fill and transmit the form
A detailed instruction on how to fill and transmit a confiscation order,

together with the certificate provided for in Article 4 paragraph 2 is
contained in articles 4 and 5 of the Council Framework Decision
2006/783/JHA.
3.3.5. Remarks and explanations

It is very important to remark, that the scope of the Framework Decision on
freezing orders is limited to the freezing of evidence located in another
Member State. The subsequent transfer of the evidence between the
Member States involved would be regulated by mutual assistance instruments
or the Framework Decision on the European Evidence Warrant.
78
3.4. Mutual Assistance in Criminal Matters
3.4.1. Introductory remarks
As already mentioned above, the existing rules on obtaining evidence in criminal
matters in the EU are of two different kinds. On the one hand, there are
instruments based on the principle of mutual assistance. These most notably
include the European Convention on mutual assistance in criminal matters 25,
supplemented by the Schengen Agreement26 and the Convention on mutual
assistance in criminal matters27 and its Protocol. On the other hand, there are
instruments based on the principle of mutual recognition, which most notably
include the above presented Framework Decision on the European Evidence
Warrant28.
From the practical point of view the instrument of utmost importance in this area
is the Convention on Mutual Assistance in Criminal Matters of 29 May 2000,
which entered into force for all the Member States on 23 August 2005.
This convention aims to encourage and modernise cooperation between judicial,
police and customs authorities within the Union as well as with Norway and
Iceland by supplementing provisions in existing legal instruments and facilitating
their application. The State receiving a request must in principle comply with the
formalities and procedures indicated by the requesting State. When a punishment
falls within the competence of the receiving authority, a spontaneous exchange of
information (i.e. without prior request) may take place between Member States
regarding criminal offences and administrative infringements.
Mutual assistance in criminal matters is a well-established principle in
international judicial cooperation. Mutual assistance is relied on when a State is
unable to continue with an investigation or procedure on its own and requires
another State's help, such as to hear witnesses or carry out surveillance on persons
located on the other State's territory.
A number of agreements have been adopted by international organisations such as
the 1959 Council of Europe Convention and its 1978 Protocol on Mutual
Assistance in Criminal Matters, the Benelux Treaty of 1962 and the 1990
25
European Convention of 20 April 1959 on mutual assistance in criminal matters.
26
Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at their common borders (OJ L 239, 22.9.2000, p. 19).
27
Convention of 29 May 2000 on mutual assistance in criminal matters between the Member States of the
European Union (OJ C 197, 12.7.2000, p. 1).
28
Council Framework Decision of 18 December 2008 on the European evidence warrant for the purpose of
obtaining objects, documents and data for use in proceedings in criminal matters (OJ L 350, 30.12.2008, p. 72).
Another instrument on this matter based on the principle of mutual recognition is the Council Framework
Decision of 22 July 2003 on the execution in the EU of orders freezing property or evidence (OJ L 196,
2.8.2003, p. 45.
79
Schengen implementation Convention. While these existing agreements have
facilitated cooperation in this area, mutual assistance is still not effective enough.
The next step towards mutual assistance in criminal matters is the 2000
Convention, which should complete the other agreements by facilitating the
proceedings and by fitting it on technological changes. Laying down the
conditions under which mutual assistance is granted, the new convention
stipulates that such mutual assistance shall respect the basic principles of each
Member State and the 1950 European Convention for the Protection of
Human Rights.
On 16 October 2001 a Protocol concerning mutual cooperation on banking
information has been adopted, aiming at fighting against money laundering
and financial crime. This Protocol forms an integral part of the 2000 Convention.
Both the 2000 Convention and the 2001 Protocol are subject to an explanatory
report adopted by the council on 29 December 2001 and on 24 October 2001 (see
Attachment II-A).
As a result to differences between national procedures, sometimes information
gathered in one Country could not be used in the other Country because the way
the information was obtained did not fit with the national procedural
requirements. Therefore the 2000 Convention provides that the requesting State
can ask the receiving State to comply with some formalities or procedural
requirements which are essential under its national legislation.
Avoiding bureaucratic approach co-operation will be easier; therefore requests for
mutual assistance and communications are to be made directly to the judicial
authorities with territorial competence. However, in some cases documents may
be sent or returned via a central authority. Urgent requests may be made via
Interpol or any other competent body.
Spontaneous exchange of information (i.e. without prior request) and mechanisms
involving modern communication methods like video conference and
teleconference will facilitate cooperation between judicial authorities regarding
criminal offences and administrative infringements.
Mutual assistance may be requested in the following cases:
 to hand over to the competent authorities of a requesting State objects that
have been stolen or obtained by other criminal means and that are found in
another Member State;
 to temporarily transfer to the territory of a Member State where an
investigation is being carried out a person held on the territory of another
Member State;
 hearing by videoconference
 hearing by telephone conference
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 to permit controlled deliveries on the territory of a Member State in the
framework of criminal investigations into offences that may give rise to
extradition. They are to be directed and monitored by the authorities of the
requested Member State.
 Two or more EU Member States may set up a joint investigation team for a
specific purpose and for a limited period of time.
 Covert investigations may also be carried out by officers of another Member
State (as well as by officers of the home Member State) acting under covert or
false identity, provided that the national law and procedures of the Member States
where the investigations take place are complied with.
 for the competent authority of a Member State to request another Member State
to intercept telecommunications. These may either be intercepted and transmitted
directly to the requesting State or recorded for subsequent transmission. Such
requests must be in accordance with the national laws and procedures of the
involved Member States;
The European Commission shares the right to initiate proposals with Member
States in the area of justice and home affairs. Concerned with the overall strategy,
the Commission is responsible for devising policies and actions and implementing
them.
European judicial cooperation in criminal matters is also dealt with by
international organisations like the Council of Europe and the United Nations,
as well as being included in work related to the enlargement of the EU and to the
transatlantic dialogue.
3.4.2. Form
Please find enclosed the form for mutual legal assistance in criminal matters,
Attachment IV-B.

For comprehensive information on how to fill the form please consult the Explanatory Report
Convention on Mutual Assistance in Criminal Matters, Attachment II-A.
3.4.4. Remarks and explanations.

The mutual assistance instruments and their protocols cover mutual assistance in
general but also contain rules on specific forms of mutual assistance such as the
interception of telecommunications or the use of videoconferencing. Requests for
mutual assistance shall, as a general rule, be transmitted directly between the
issuing and executing authority. Unless a relevant ground for refusal is invoked by
the executing authority, the request shall be executed as soon as possible and if
81
possible within the deadlines indicated by the issuing authority. In order to ensure
the admissibility of the evidence obtained, the authorities of the requested State
shall comply with the formalities and procedures indicated by the authorities of the
requesting State provided that they are not contrary to fundamental principles of
law in the requested State.
3.5. Joint Investigation Teams
3.5.1. Introductory remarks 29
The Member States meeting in Tampere in 1999 called for joint investigation teams to
be set up without delay with a view to combating trafficking in drugs and human
beings, as well as terrorism. The Convention on Mutual Assistance in Criminal
Matters adopted in May 2000 provides for the setting-up of joint investigation teams.
More and faster progress in police cooperation
In view of slow progress towards ratification of the Convention by the Member States
in June 2002, the Council adopted this Framework Decision on joint investigation
teams, which the Member States were to implement by 1 January 2003.
Setting up joint investigation teams
As already mentioned above for the purpose to carry out criminal investigations in
Member States which necessitate coordinated and concerted action, at least two
Member States may set up a joint investigation team. Consequently, the competent
authorities of the relevant Member States enter into an agreement determining the
procedures to be followed by the team. The joint team must be set up for:
 a specific purpose; and
 a limited period (which may be renewed with the agreement of all the parties
involved).
The Member States that set up the team will decide on its composition, purpose and
duration. They may also allow representatives of Europol and OLAF and representatives
of third countries take part in the team's activities.
Members of the joint investigation team from Member States other than the Member
State in which the team operates are referred to as being "seconded" to the team. They
may carry out tasks in accordance with the law of the Member State where the team is
operating.
With respect to offences committed by them or against them, officials from a Member
State other than the Member State of operation are to be regarded as officials of the
Member State of operation.
29
For the summary concerning JIT by the European Commission see:
http://europa.eu/legislation_summaries/other/l33172_en.htm
82
3.5.2. Form
It should be noted that the Joint Investigation Teams may be set out upon the rules
of the Convention on Mutual Assistance in Criminal Matters. Therefore in such
cases the form as well as the way of transmitting it the appropriate authorities in
other Member States should be used. Please find enclosed the form for mutual
legal assistance in criminal matters, Attachment III-B.

The same concerns to the topic on how fill the above mentioned form.
The comprehensive information on how on it is also available in the Explanatory
Report on the Convention on Mutual Assistance in Criminal Matters,
Attachment II-A.
3.5.4. Remarks and explanations30

Please note that the 2000 Convention Mutual Assistance in Criminal Matters has
replaced the Council Framework Decision of 13 June 2002 on joint investigation
teams (2002/465/JHA). Its article 5 states that “It shall cease to have effect when the
Convention on Mutual Assistance in Criminal Matters between Member States of the
European Union has entered into force in all Member States”, what was the case on 23
August 2005.
3.5.5. List of attachments:

 Attachment I-A: Final version of the European handbook on
how to issue a European Arrest Warrant including EAW form, manual
how to fill the form and the whole text of the EAW Framework
Decision;
 Attachment I-B: Report From The Commission on the
implementation since 2005 of the Council Framework Decision on the
European arrest warrant and the surrender procedures between Member
States;
 Attachment II-A: Explanatory Report on the Convention of 29
May 2000 on Mutual Assistance in Criminal Matters between the
Member States of the European Union, the text of the Convention and
the form of a request;
30
See also: Report from the Commission on national measures taken to comply with the Council Framework
Decision of 13 June 2002 on Joint Investigation Teams [COM(2004) 858 final - not published in the Official
Journal].
83
 Attachment II-B: Explanatory Memorandum on Proposal for a
Council Framework Decision on the European Evidence Warrant for
obtaining objects, documents and data for use in proceedings in
criminal matters;
 Attachment II-C: The text of 2008/978/JHA of 18 December
2008 on the European Evidence Warrant;
 Attachment III-A: a standard form called “Certificate” as set
out in article 9 of Council Framework Decision 2003/577/JHA;
 Attachment III-B: a standard form called “Certificate” for
mutual recognition as set out in article 4 Council Framework Decision
2006/783/JHA;
 Attachment IV-A: List of the acquis in the area of Justice and
Home Affairs.
 Attachment IV-B: Form for mutual legal assistance in Criminal
matters
84
3.5.6. Helpful links:
European Commission
 http://www.consilium.europa.eu
 External relations
 OLAF (Anti-Fraud Office)
 http://eur-lex.europa.eu/RECH_legislation.do?ihmlang=en (data base of the EU
legislation and documentation)
Other European Union sites
 European Parliament
 Council of the European Union
 Eurojust
 European Judicial Network (EJN)
 Europol
o An Overview of the Counter Terrorism Unit Activities
Organisations
 Council of Europe
o Combating terrorism.
o The Multidisciplinary Group on International Action against Terrorism
(GMT)
 United Nations
o UNODC. The page of the United Nations Office on Drugs and Crime
(OSCE) which covers the Global Programme against Terrorism
 Interpol
o Interpol's involvement in the fight against international terrorism
 OSCE. The Organization for Security and Co-operation in Europe (OSCE)
 NATO's contribution to the fight against terrorism.
 North Atlantic Treaty Alliance (NATO)
 United Nations
 OECD
o FATF-GAFI. The page of Financial Action Task Force on Money Laundering
on terrorism funding of the OECD.
85
o Terrorist financing of the FATF-GAFI (Financial Action Task Force on Money
Laundering on terrorism funding of the OECD).
 International Juvenile Justice Observatory
 International Juvenile Justice Observatory
 Victim Support . An independent charity which helps people cope with the
effects of crime
86
4. Part. Protection of Human Rights and Fundamental Freedoms
Introduction
This part of the Manual is designed to train Kosovar judges and public prosecutors by
providing them with some practical information regarding the principles laid down by those
provisions of the ECHR most frequently invoked before the criminal courts and how they are
applied by the European Court of Human Rights.
After a brief presentation of the Convention, the Court and its working methods, for each of
the articles most frequently invoked in criminal law this document will present:
- A reminder of the general principles and leading cases

- Recent case law of the Court in criminal matters
- Corresponding references to the Constitution of the Republic of KOSOVO.
It should be noted that Article 22 of the Constitution provides for direct application of the
Convention, which shall take precedent over internal provisions in the event of conflict.
Article 53 stipulates that the human rights and fundamental freedoms protected by this
Constitution shall be interpreted in accordance with the case law of the Court. Thus, the
Convention is applicable in KOSOVO, even if the country has not ratified it to date.
Chapter I Presentation of the Convention and the Court
The European Court in Strasbourg is the supranational body that supervises the application of
the Convention, signed in Rome on 4/11/1950. The Council of Europe’s Parliamentary
Assembly elects its judges, whose number is equal to the number of member states. The Court
has two roles: it issues advisory opinions and settles legal disputes. It is increasingly popular
with litigants (over 10 000 judgements delivered since it was created), and its decisions may
contain an appendix with the dissenting opinions of certain judges.
87
A case may only be submitted to the Court once all domestic remedies have been exhausted
(Article 35), and at this point in time, Kosovar citizens cannot apply to the court directly.
Judgements delivered are binding on Member States, and if the Court finds that a right has
been violated, the victim is entitled to fair compensation.
Some principles of interpretation of the Convention by the Court
- Principle of the rule of law: the concept of the rule of law, which the Court draws from the
Convention’s preamble, was established in the Golder case (21-02-75). It is there to ensure the
universal and effective recognition of the rights enshrined in the Convention. Thus the Court
has held that the Convention is a constitutional instrument of European public order
(LOIZIDOU 23/05/95). Similarly, in the AIREY judgement of 09/10/79, the Court restated
the fact that its major concern was to “guarantee not rights that are theoretical or illusory but
rights that are practical and effective”.
- Article 32 gives the court jurisdiction to interpret the Convention by referring to general
treaty principles (Vienna Convention of 23/05/69).
- Principle of the autonomy of the Convention’s terms: the convention often uses general
terms (like victim, injured party, persons of unsound mind, conviction etc.). To interpret these
terms, rather than referring to their meaning in the domestic law of the country concerned, the
Court allocates a European meaning specific to the Convention.
- The Court’s decisions create “positive obligations” on States, which must adopt reasonable
and appropriate measures to protect the right in question (LOPEZ OSTRA 09-12-94).
- Principle of the narrow interpretation of restrictions mentioned in the Convention

(KLASS 06/08/78).
- Principle of proportionality: “fair balance that has to be struck between the general interest
of the community and the interests of the individual” (KLASS, above).
88
Chapter II Commentary per article
Article 3 ECHR Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or
punishment
Leading cases
Article 3 enshrines the absolute prohibition of torture and inhuman or degrading treatment or
punishment and there may be no restriction or derogation to this prohibition.
However, mistreatment must reach a minimum threshold of severity in order to warrant
Article 3’s application.
According to Court case law, torture corresponds to “deliberate inhuman treatment causing
very serious and cruel suffering” (IRELAND v. UK Plenary Session 18.01.1978 § 167 N°
14038/88).
In SELMOUNI v. FRANCE of 28.07.99, the Court identified three elements that, when all are
present, constitute torture:
- deliberate intent
- a determined objective
- acute suffering.
Inhuman treatment is voluntarily causing mental or physical suffering of particular intensity.

Degrading treatment is defined as treatment that grossly humiliates individuals in the eyes of
others, pushing them to act against their own will or conscience (TYRER 25.04.78).
The Court will assess this with reference to the particular person concerned.
Recent case law:
* NON VIOLATION Art 3
- Compatibility of state of health with continued detention
89
- Imprisonment of an elderly person (over 90 years old)
Judgement 7 June 2001 n°64666/01 Papon v. France
- Imprisonment of a person with a heart condition

Judgement 25 July 2000 n° 42553/98 Legret v. France
- Imprisonment of a person suffering from psychiatric problems

Judgement 26 October 2000 n°30210/96 Kudla v. Poland
* VIOLATION Art 3
- Excessive detention conditions amounting to inhuman treatment

Judgement 6 March 2001 n°40907/98 Peers v. Greece
KOSOVO Constitution:
Art 26 – right to respect of physical and mental integrity
Art 27 – prohibition of torture and inhuman and degrading treatment
Article 5 ECHR Right to liberty and security
Leading cases
The right to liberty and security set forth in Article 5-1 is particularly important in a
democratic society.
The six cases that constitute exceptions to this are strictly interpreted by the Court, which
takes account of the reasons for and duration of detention, its lawfulness and the balance
between the cause and place of deprivation of liberty, and the regulations applicable to the
detention.
ENGEL 08.06.76 regarding administrative confinement

WINTERWERP v. THE NETHERLANDS 24.10.79 N° 6301/73 regarding the confinement of
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a mentally ill person.
BOUAMAR 29.02.78 regarding the deprivation of a minor’s liberty as part of an educative
measure.
AMUUR v. FRANCE 25.06.96 regarding the holding of a foreign citizen in a waiting area.
Articles 5-2 to 5-5 describe the various rights of persons who have been arrested, detained or
deprived of their liberty: right to be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him; right to be brought promptly
before a judge and to trial within a reasonable time; right to take proceedings; right to
compensation in the event of wrongful detention.
Recent case law:
VIOLATION Art. 5. 1
- Lawful arrest or detention
- Circumvention of a statutory provision on the maximum term of detention by newly

detaining the individual ten minutes after his release.
Judgement 10 May 2007; n°199/05 John v. Greece
- Continued confinement after the lifting of a compulsory treatment order

Judgement 6 September 2007 n° 2570/04 Kucheruk v. Ukraine
- Failure to take account of asylum seeker status during detention with a view to expulsion
Judgement 11 June 2009 n°53541/07 S.D. v. Greece
* NON VIOLATION Art 5.1
- Deprivation of liberty
- Detention of a mother further to her refusal to comply with a foreign court ruling ordering
her to return her children to their father (inadmissible)
91
Decision 4 September 2007 n°100 ; Paradis and others v. Germany, n°4065/04
* VIOLATION Art 5.1.c
- Reasonable suspicion
- Applicant arrested and remanded in custody without verifying whether the complaints
against him appeared to be well founded
Judgement 6 November 2007, n°8207/06 Stepuleac v. Moldova
* VIOLATION Art. 5. 1.e
- Persons of unsound mind
- Continued detention of the applicant in an ordinary detention centre pending her admission
to a psychiatric hospital
Judgement 6 November 2007, n°26917/05 Mocarska v. Pologne
* NON VIOLATION Art. 5. 1.f
- Preventing unlawful entry into the territory of a State
- Holding of an asylum seeker in an airport waiting area after the court took an interim
measure against his expulsion to his country of origin
Judgement 26 April 2007 ; n°25389/05 Gebremedhin v. France
* VIOLATION Art 5.1.f
- Expulsion procedure
- Unlimited duration of detention of foreigners suspected of terrorism

Judgement 19 February 2009 n°3455/05 A. and others v. the United Kingdom
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* VIOLATION Art. 5. 3
- Duration of pre-trial detention
- Mistreatment and reasonable time (4 years)

Judgement 27 August 1992 , Series A n°241-A Tomasi v. France
- Existence of a prejudiced based on length of pre-trial detention

Judgement 28 September 1999 n°29340/95 Civet v. France
- Date on which the 6 month period commences in the case of consecutive periods of pre-trial
detention
Judgement 16 January 2007 ; n°27561/02 Solmaz v. Turquie
- Lack of detailed reasons for deciding to extend pre-trial detention

Judgement 13 March 2007, n°23393/05 Castravet v. Moldova
- Question of alternatives to pre-trial detention never seriously examined by the Belgian

judicial authorities
Judgement 8 November 2007, n°11287/03, Lelièvre v. Belgium
Bringing before a judge
- Detention for 4 days and 6 hours without appearing before a judge

BROGAN v. UK 29.11.88
- Minors detained for 3 days and 9 hours before being brought before a judge
Judgement 3 February 2009 n° 17019/02 and 30070/02 Ipek and others v. Turkey
- Presentation before a court 20 days after arrest

Judgement 24 February 2009 n°42716/02 Toma v. Romania
93
* VIOLATION Art 5.4
- Taking proceedings
- A person in pre-trial detention unable to effectively communicate with his lawyer due to a
glass partition separating them and suspicion that their conversations were being intercepted
Judgement 13 March 2007, n°23393/05, Castravet v. Moldova
- Lack of confidentiality of communication between a lawyer and his client due to the
systematic use of a glass partition in a remand centre
Judgement 10 May 2007, n°14437/05 Modarca v. Moldova
- Detained with a view to extradition for a period of 3 years with no means of obtaining
judicial review of the detention
Judgement 11 October 2007 n°656/06 Nasrulloyev v. Russia
- No means for an asylum seeker to obtain a court decision on the lawfulness of his detention
with a view to expulsion
Judgement 11 June 2009 n° 53541/07 S. D. v. Greece
* VIOLATION Art 5.5
- Compensation
- No means of obtaining compensation due to disruption in the functioning of the judicial

system and absence of final decisions ordering discharge from prosecution
Judgement 18 January 2007 n°59334/00 Chitayev and Chitayev v. Russia
Art. 29
94
Article 6 Right to a fair trial
Principles set forth by the Court
Article 6-1
The right to a fair trial applies to both civil disputes and criminal accusations, to the extent
that the Court deems these to be “autonomous concepts”. Thus the Court has extended the
scope of Article 6 to disciplinary decisions for example (LE COMPTE, VAN LEUWEN and
DE MEYERE v. BELGIUM 23.06.81 N° 6878/75)
ÖZTÜRK v. GERMANY 01.02.84 N° 8544/79 FELDBRUGGE v. THE NETHERLANDS
29.05.86
On the concept of independence:

The Court reiterates the “confidence which the courts must inspire in the public in a
democratic society”.
Leading cases:
PIERSACK v. BELGIUM 01.10.82 N°8692/79, HAUSCHILDT v. DENMARK 24.05.89
N°10486/83)
The Court differentiates subjective impartiality, which depends on the judge in person, from
objective impartiality, which depends on the judicial organisation.
On the principle of equality of arms:

Judgements: Neumeister 27/06/ 68 Bonïch 6/05/85
Leading case BORGERS v. BELGIUM 30.10.91 N°12005/86 (Duty to offer each party a
reasonable possibility to present their case – including evidence – in conditions that do not
place one party at a clear advantage over their adversary (DOMBO v. THE NETHERLANDS
27.10.93 N° 14448/88).
On the principle of publicity:

According to the Court, this is “one of the means whereby confidence in the courts, superior
and inferior, can be maintained” and a fair trial guaranteed (protection against administration
of justice in secret with no public scrutiny) (AXEN v. GERMANY 08.12.83 N°8273/78,
HELMERS v. SWEDEN 29.10.91 N°11826/85, PRETTO v. ITALY 08.12.83§21 N°798/77).
95
On reasonable time:
The Court assesses reasonable time according to the circumstances and in light of the
following three criteria:
 - complexity of the case
 - applicant’s behaviour
 - national authorities’ behaviour.
(NEUSMEISTER v. AUSTRIA 27.06.68 N°1936/63, PRETTO v. ITALY 08.12.83
N°7984/77)
Article 6-2: Presumption of innocence

In this respect, the Court requires that “when carrying out their duties, the members of a court
should not start with the preconceived idea that the accused has committed the offence
charged; … it is for the prosecution to inform the accused of the case that will be made
against him, so that he may prepare and present his defence accordingly”. (MINELLI v.
SWITZERLAND 25.03.83 N°8660/79).
Article 6-3: Rights of the accused (to be appropriately informed in detail in a language which
he understands, to have adequate time for the preparation of his defence, right to legal
assistance for his defence, witnesses, interpreter).
Right to legal assistance for defence:
The Court has underlined the fact that there are three possibilities when it comes to defence:
 defending oneself in person
 entitlement to the legal assistance of one’s own choosing
 free assistance from a legal aid lawyer.

Refusal to appear before the court does not constitute grounds for depriving the accused of his
right to legal assistance for his defence (POITRIMOL v. FRANCE 23.11.93 N°14032/88).
The Court has stipulated that it must be a “real and effective defence” (MAKHFI v. FRANCE
19.02.04 N°59335/00). The accused and his or her lawyer must be able to follow the
discussions in court, answer questions and state their arguments without being in a state of
excessive fatigue… and judges must be able to fully concentrate.
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It is important to underline that, for the Court, this principle applies as from the preliminary
police investigation (IMBRIOSLIA v. SWITZERLAND 24.11.93 N°13972/88, John
MURRAY v. UK 08.02.96 N°18731/91).
Lastly, the accused must have time to prepare his or her defence in the event of re-
qualification by the court during deliberations (PELISSIER v. FRANCE 25.03.99
N°2544/94).
The Court has stipulated that the accused who has chosen to defend himself in person must be
able to access the case file and obtain communication of the documents from the file
(FOUCHER v. FRANCE 23.11.93 N°14032/88). Similarly, the person concerned must be
informed as to when an allotted period of time for producing a statement of grounds of appeal
starts to run or expires (VACHER v. FRANCE 17.12.91 N°20368/92).
Witnesses:
The Court had traditionally ruled that the accused was entitled to examine or have examined
witnesses on his behalf under the same conditions as witnesses against him (KOSTOVSKI v.
THE NETHERLANDS 20.11.99 N° 11454/88).
Moreover, the notion of witness is very broad because it includes any person – expert witness,
civil party claiming damages, co-accused – whose statements are communicated to the judge,
who takes them into account in his or her decision ( BÖNISCH v. AUSTRIA 06.05.85 N°
8658/79)
Recent case law:
* APPLICABILITY Art 6
- Case regarding the right of civil service police officers to special compensation (new
approach to Article 6.1)
Judgement 19 April 2007, n°63235/00 Vilho Eskelinen and others v. Finland
- Severity of sentencing to 3 days of administrative detention

Judgement 31 July 2007, n°65022/01 Zaicevs v. Latvia
97
* INAPPLICABILITY Art 6
- Enforcement of a confiscation order issued by a foreign court

Decision 5 July 2007, n°69917/01 Saccoccia v. Austria
- Warning given by the police to a minor who had committed indecent assault on girls at his
school
Decision 4 January 2007 n°33506/05 R. v. United Kingdom
* NON VIOLATION Art 6.1
- Right to a tribunal
- Immunity awarded to members of the Supreme Council of the Judiciary, who cannot be sued
for opinions expressed in the performance of their duties (inadmissible)
Judgement 5 April 2007, n°34971, Esposito v. Italy
- Association with limited resources sentenced to pay costs claimed by a multinational

company in an environmental protection case
Judgement 12 June 2007, n°75218/01 Collectif national d’information et d’opposition à
l’usine Melox- collectif stop Melox et Mox v. France
Fair trial
- Failure to give the applicant a copy of the plaintiff’s pleadings that merely reproduced the
arguments of the Prosecutor’s Office
Judgement 5 February 2007, n°43432/02, Verdu v. Spain
- Recording of a conversation using a listening device installed on the body and use of the list
of phone calls as evidence in a trial
Judgement 1st March 2007, n°5935/02 Heglas v. Czech Republic
- Partial disclosure during an appeal in a criminal case of evidence covered by a public

interest immunity certificate
98
Judgement 7 June 2007, n°15187/03 Botmeh and Alami v. United Kingdom
- Person registered as a vehicle’s owner obliged to provide information aimed at identifying

the driver in the event of an alleged driving offence
Judgement 29 June 2007, n°15809/02 and n°25624/02 O’Halloran and Francis v. United
Kingdom
- Equality of arms
- Presence of a member of the Prosecution during a jury information session

Judgement 4 October 2007, n°16290/04 Corcuff v. France
- Impartial tribunal
- Impartiality of a court of appeal where two of its judges ruled that a newspaper’s
reproduction of passages from a novel was libellous when they had deemed said passages to
be libellous in previous proceedings against the author and publisher.
Judgement 22 October 2007, n°21279/02 and n°36448/02 Lindon, Otchakovsky- Laurens and
July v. France
* VIOLATION Art 6.1
- Right to a tribunal
- Non-enforcement of a decision of the Chamber of Human Rights

Judgement 20 November 2007 n°39462/03 ; Karanovic v. Bosnia Herzegovina
- Access to a tribunal
- Refusal to allow a convicted person on the run to be represented at an appeal

27 April 2004 n°39001/97 Maat v. France
- No means for persons receiving legal aid to refer to the Supreme Court if their lawyers
99
believe that the appeal has no reasonable chance of succeeding
Judgement 22 March 2007, n°59519/00 Staroszczyk v. Poland
Judgement 22 March 2007, n°8932/05, Sialkowska v. Poland
Refusal, without valid explanation, to authorise the presentation of detailed grounds of appeal
Judgement 24 May 2007, n°70142/01 Dunayev v. Russia
- Refusal to award legal aid to an applicant who was unable to pay the court costs to
commence proceedings
Judgement 12 June 2007, n°50939/99 Bakan v. Turkey
- Wrongful refusal by the Supreme Court to examine the applicant's appeal in a case involving
allegations of torture due to his failure to pay court fees
Judgement 19 June 2007, n°12066/02, Ciorap v. Moldova
- Plaintiff in a civil case ordered to pay costs based on a percentage of damages claimed
Judgement 12 July 2007, n°68490/01 Stankov v. Bulgaria
- Temporary suspension of court activities in Chechnya due to an anti-terrorist operation

Judgement 15 November 2007, n°72118/01, Khamidov v. Russia
- Inadmissibility of an appeal that did not contain a statement of facts but merely referred to
the permit being challenged
Judgement 24 February 2009 n°49230/07 L’Erablière ASBL v. Belgium
- Failure of a court to inform the accused that they were entitled to a new deadline for lodging
an appeal after their legal aid lawyers refused to assist them
Judgement 19 May 2009 n°18353/03 Kulikowski v. Poland
Judgement 19 May 2009 n°2815/05 Antonicelli v. Poland
- Fair trial
- Refusal of domestic courts to examine an alleged breach of the Convention
100
Judgement 11 January 2007, n°184/02 Kuznetsov and others v. Russia
- Absence of reasons given by domestic courts

Judgement 22 February 2007, n°1509/02 Tatishvili v. Russia
- Erroneous interpretation of the object of proceedings and conflict of jurisdiction between

courts causing considerable delay (3 years)
Judgement 15 March 2007 n°19215/04, Gheorghe v. Romania
- annulment of the applicant’s acquittal at the Prosecutor’s request in the absence of any new
evidence
Judgement 16 January 2007, n°36492/02 Bujnita v. Moldova
- The Court of Cassation declares an argument based on the right to a fair trial inadmissible
Judgement 22 February 2007, n° 17721/04 Perlala v. Greece
- Use during a trial of statements made under torture by the accused and by witnesses
Judgement 28 June 2007 n°36549/03 Harutyunyan v. Armenia
- Failure to give reasons for a conviction handed down by an Assize Court

Judgement 13 January 2009 n°926/05 Taxet v. Belgium
 Public trial
- Failure by the authorities to provide the public with regular transport and information for a
trial held in a remote prison
Judgement 29 November 2007 n° 9852/03 and n°13413/04, Hummatov v. Azerbaijan
 Reasonable time
- Criminal procedure of key importance to the applicants’ professional activity and that of
their company
Judgement 25 September 2007, n°34316/02 De clerck v. Belgium
101
 Independent and impartial tribunal
- Tenuous difference between the role of a professional judge ruling on the continued
detention of the accused and that of deciding whether the jury’s verdict should be approved
Judgement 31 July 2007, n°11106/04, 11108/04, 1116/06, 11311/04, 13276/04 Ekeberg and
others v. Norway
- Dismissal of an accused’s request for the court to note that there had been unlawful
communication between the advocate general and certain jurors during an adjournment of his
trial at the Assize Court
Judgement 16 January 2007, n°17070/05 Farhi v. France
- Absence of a clear distinction between the functions of investigation and judgement of a

Supervisory Authority responsible for overseeing investment and loans companies
Judgement 11 June 2009 n° 5242/04 Dubus S.A v. France
* VIOLATION Art 6.2
 Presumption of innocence
- Confiscation order further to offences for which the applicant had been acquitted
Judgement 1st March 2007, n°30810/03 Geerings v. The Netherlands
- Interpretation by administrative courts of an acquittal by the Criminal Court based on benefit

of doubt
Judgement 27 September 2007, n°35522/04 Vassilios Stavropoulos v.Greece
* INADMISSIBILITY Art 6.3
Rights of the defendant
102
- No means for the accused to request the adoption of summary proceedings
Decision 6 November 2007, n°17543/05 Hany v.Italy
* VIOLATION Art 6.3
- Adequate time and facilities
- Applicant given just a few hours to prepare his defence, with no contact with the outside
world
Judgement 15 November 2007, n°26986/03 Galstyan v. Armenia
- Failure to notify the applicant of a new appeal hearing in his criminal case
Judgement 23 April 2009 n°32165/02 Sibgatullin v. Russia
* VIOLATION Art. 6.3.b
 Defending oneself through legal assistance
- Interception of a confidential telephone conversation between an accused, participating in

the hearing via videoconference, and his lawyer
Judgement 27 November 2007 n°58295/00 Zagaria v. Italy
* VIOLATION Art 6.3.c
 Defending oneself in person
The Court has stipulated that in this case, the accused must be able to access the case file and
obtain communication of the documents from the file (FOUCHER v. FRANCE 23.11.93
N°14032/88). Similarly, the person concerned must be informed as to when an allotted period
of time for producing a statement of grounds of appeal starts to run or expires (VACHER v.
FRANCE 17.12.91 N°20368/92).
- Refusal to allow the accused to appear at the appeal hearing regarding questions of fact
relevant to determining his guilt
103
Judgement 9 June 2009 n°19847/07 Sobolewski (n°2) v. Poland
* VIOLATION 6.3.d
- Examination of witnesses
- Anonymous witness whom the applicant could not examine and no review of the reliability
of this testimony by an examining magistrate
Judgement 13 January 2009 n°926/05 Taxet v. Belgium
Art. 30
Art. 31
Art. 102
ART 7 No punishment without law
Principle
This is the application of the principle of legality of offences and punishments and the
prohibition of the retroactive application of criminal law to the detriment of the accused.
The Court interprets the concept of punishment as very broad and independent. (e.g.
imprisonment in default has been deemed to constitute punishment.)
Leading cases:
KOKKINAKIS v. GREECE 25.05.93§52 N° 14307/88
WELCH v. UK 09.02.95 N°17440/90
PESSINO v. FRANCE 10.10.06 N° 40403/02
This is linked to Art. 4 of Protocol N° 7 (Rule of non bis in idem).
“The principle of legality of offences and punishment is an essential element of the rule of
law” from which States may never derogate (SW v. UK 22.11.95 N°20166/92)
104
Recent case law:
VIOLATION
SUD FONDI SRL v. Italy 30.08. 2007 N° 75909/01

Confiscation of land and illegal constructions by the criminal court judge despite the owners’
acquittal.
MÜCKE v. Germany 2007 N° 19 359/04

Extension of a recidivist’s pre-trial detention due to the retroactive application of a statutory
modification. (Section V N° 95)
DRAGO TONIU AND MILITARU –PIDHORNI V. ROMANIA 24/5/07 N° 77 193 and

77196/01
Conviction of employees of a private company for passive corruption when, at the time of the
events, the criminal code required the offender to be a civil servant or employee of a public
company.
Art. 33
Article 8 Right to respect for private and family life
Principle
According to the Court, the objective of this principle is to protect individuals against
arbitrary interference by public authorities (DUDE+GEON v. UK 22.10.81 N°7525/76).
This, along with Article 6, is the article that is applied the most in case law. Among others, it
covers the protection of the right to:
- confidentiality of correspondence (MALONE v. United Kingdom 2/08/84 N°
105
86912/79)
- respect for one’s home (GILLOW v. United Kingdom 24/11/86 N° 9063 80).
- sexual freedom.
The notion of family life is interpreted broadly and flexibly, based on the existence of kinship
and emotional ties, and includes relationship by descent (legitimate, adoptive, illegitimate,
adulterous) and by marriage.
Recent case law in the judicial sector
* APPLICABILITY Art 8
- A mother and her adopted daughter living together since the adoption ruling was delivered
abroad
Judgement 28 June 2007 n°76240/01 Wagner and J.M.W.L v. Luxembourg
- A prisoner's cell considered to be his only “living space” for years

Judgement 7 April 2009 n° 6586/03 Branduse v. Romania
* VIOLATION Art 8
- Private life
- Recording of a conversation using a listening device installed on the body and use of the list
of phone calls as evidence
Judgement 1st March 2007, n°5935/02 Heglas v. Czech Republic
- Interception of phone calls by the authorities with no warrant in the suspect’s name issued
by the Prosecutor, and in the absence of a law offering sufficient protection against arbitrary
decisions
Judgement 26 April 2007, n°71525/01 Dumitru Popescu v. Romania
106
- Search and sealing off of a civil servant’s office following the publication in the press of a
letter in which he criticised the Chief Prosecutor
Judgement 26 July 2007 n°64209/01 Peev v.Bulgaria
- Police providing technical assistance to an individual wishing to record his conversations

with the applicant, in the absence of any regulatory framework
Judgement 25 October 2007 n°38258/03 Van Vondel v. The Netherlands
- National courts failing to protect the applicant’s reputation during a libel case following the
publication of a letter accusing him of certain actions liable to constitute an offence
Judgement 15 November 2007 n°12556/03 Pfeifer v. Austria
- Journalists alerted and authorised by the police to record images of the applicant in custody
with a view to broadcasting them
Judgement 24 February 2009 n°42716/02 Toma v. Romania
- Strong smells, caused by the proximity of a landfill to the prisoner’s cell, affecting his
quality of life and wellbeing
Judgement 7 April 2009 n° 6586/03 Branduse v. Romania
- Publication in press articles of information that would allow the applicant to be identified
and for him to be seen as the main suspect in a murder case
Judgement 9 April 2009 n°28070/06 A. v. Norway
- Private and family life
- Illegal expulsion of the applicant preventing all relations between him and his family and
newborn child
Judgement 11 January 2007, n°61250/00 Musa and others v. Bulgaria
- Early morning intrusion by armed, masked police offers into the applicant’s home to notify
him of charges and refusal of the penitentiary authorities to allow his wife to visit him
Judgement 17 July 2007, n°48666/99 Kucera v. Slovakia
107
- Conjecture expressed by a court when hearing a request for access suggesting that the child
concerned may have been sexually abused by the applicant
Judgement 4 October 2007 n°12148/03 Sanchez Cardenas v. Norway
- No means for a person in pre-trial detention to say a proper goodbye on the telephone to his
dying father
Judgement 6 December 2007, n°25664/05 Lind v. Russia
- Home
- Search and seizure performed at a lawyer’s home without justification or guarantees

Judgement 7 June 2007 n°71362/01 Smirnov v. Russia
- Correspondence
- Principle of prisoners’ freedom of correspondence

Judgement 28 September 2000 n°25498/94 Messina v. Italy
- Interception of letters between prisoners and their lawyer

Judgement 30 January 2007, n°77097/01Ekinci and Akalin v. Turkey
- Failure to comply with procedural guarantees when performing a search at a lawyer’s home
and seizing electronic data from his computer system
Judgement 16 October 2007 n°74336/01 Wieser and Bicos Beteiligungen GMBH v. Austria
- Refusal, based on a ministerial circular, to transmit a letter from one prisoner to another, and
definition of the concept of “prisoners’ correspondence” according to its content
Judgement 12 June 2007 n°70204/01 Frérot v. France
- Failure to provide the prisoner with stamps for his correspondence with the Court
Judgement 24 February 2009 n°63258/00 Gagiu v. Romania
108
- Surveillance of a prisoner’s correspondence with a medical specialist who was treating him
Judgement 2 June 2009 n°36936/05 Szuluk v. United Kingdom
Art. 36
Article 10 Freedom of expression

Principle
For the Court, this is one of the “essential foundations of democracy, one of the basic
conditions for its progress and for the development of every man”. Freedom of expression
includes “the right to receive and impart any ideas, those favourably received or regarded as
inoffensive, but also those that offend, shock or disturb”.
Sunday Times v. United Kingdom 26/04/79 N° 6538 74
This article raises the issue of the relationships between justice and the media and the
discretion that the Court leaves to the State.
Recent case law:
* VIOLATION Art 10
- Freedom of expression
- Banning of the performance of a play in Kurdish in a municipality’s venues

Judgement 3 May 2007 n° 34797/03 Ulusoy and others v. Turkey
- Journalists convicted of using and reproducing in their book elements from an ongoing
criminal investigation
Judgement 7 June 2007 n°1914/02 Dupuis and others v. France
- Detention of a journalist aimed at forcing him to reveal sources

Judgement 22 November 2007 n° 64752/01 Voskuil v. The Netherlands
109
- Judge removed from sitting on a case due to criticisms she expressed regarding Russia’s
judicial order
Judgement 26 February 2009 n°29492/05 Koudechkina v. Russia
- Prolonged failure by the authorities to observe a judicial order to allow free access to
documents pertaining to former government departments
Judgement 26 May 2009 n°31475/05 Kenedi v. Hungary
- Criminal conviction of a journalist for calling a well-known historian an “idiot” and a

“fascist”
Judgement 23 June 2009 n°32550/05 Bodrozic v. Serbia
- Criminal conviction of a journalist for comparing a well-known lawyer to a blond

Judgement 23 June 2009 n° 38435/05 Bodrozic and Vujin v. Serbia
Art. 40
Article 13 Right to an effective remedy
Principle:
This provision is the corollary of Article 35§1 that enshrines the subsidiary nature of the
Convention’s protection mechanism. States are obliged to instate effective means of domestic
remedy in the event of a breach of the Convention.
The European Court has rendered this article useful by ruling that any individual may invoke
this provision without having to previously establish that another article of the Convention
has been breached.
Judgement KUDLA V. Poland 20/10/2000 application of Article 13 to the question of
exceeding a reasonable timelimit.
Recent case law:
110
- Effective remedy
- No remedy for a prisoner against disciplinary sanctions

Judgement 3 April 2001 n°27229/95 Keenan v. United Kingdom
- No effective domestic remedy for contesting police mistreatment

Judgement 18 January 2007 n°61259/00 Chitayev and Chitayev v. Russia
- No means for an asylum seeker placed in an airport waiting area to apply with suspensive
effect against the decision not to allow him access to the French territory and ordering his
expulsion
Judgement 26 April 2007 n°25389/05 Gebremedhin v. France
- No effective remedy to protest the length of proceedings

Judgement 24 February 2009 n°37411/02 Abramiuc v. Romania
- Prejudice based on length of a criminal procedure – lack of effective remedy

Judgement 25 September 2007, n°34316/02 De Clerck v. Belgium
- No means for the applicants to obtain enforcement of judicial or administrative decisions

awarding them compensation due to the lack of adequate procedures and statutory
frameworks
Judgement 13 November 2007 n°33771/02 Driza v. Albania
Judgement 13 November 2007 n°33222/02 Ramadhi and five others v. Albania
Art. 54
Article 14 Discrimination
Principles
111
This article lays down the principle of non discrimination. It prohibits any distinction on
grounds such as sex, race, colour, language, religion, political or other opinions, national or
social origin, association with a national minority, property or birth. The Court has developed
the principle of autonomy by combining it with other articles in the Convention.
D.H v. CZECH REPUBLIC 13/11/07 discrimination related to the enrolment of Roma pupils
in special schools. See also the recent case law below.
Protocol N°12 of 4/11/2000 came into force on 1st April 2005. Its Article 1 lays down a
general prohibition of all discrimination and extends the scope of prohibition to all forms of
discrimination.
Recent case law:
* VIOLATION Art 2
- Absence of an effective investigation by the authorities into a racist murder and no

prosecution of the culprits for a crime motivated by racial hatred
Judgement 26 July 2007 n°55523/00 Angelova and Iliev v. Bulgaria
* VIOLATION Art 3
- Absence of an effective investigation into a racist attack on a Roma individual

Judgement 31 May 2007 n°40116/02 Secic v. Croatia
* VIOLATION Art. 2 and 3
- Judicial system’s failure to provide an adequate solution in the face of severe domestic
violence
Judgement 9 June 2009 n°33401/02 Opuz v. Turkey
- Authorities’ comments and attitude in reaction to a violent attack on a congregation of
112
Jehovah's Witnesses
Judgement 3 May 2007 n°71156/01 97 Members of the Gldani congregation of Jehovah’s
Witnesses and 4 others v. Georgia
- Failure of law enforcement officers to investigate the possible existence of racist motives
behind the mistreatment of a Roma individual in a police station combined with the attitude of
these officers during the investigation
Judgement 26 July 2007 n°48254/99 Cobzaru v. Romania
* INADMISSIBILITY Art 6
- Judges who were parties to litigation exempted from court costs on the grounds that they
were fulfilling their duties
Decision 26 May 2009 n°1529/08 Gouveia Fernandes and Freitas E Costa v. Portugal
Art. 57-2, 58 -3 -4 and 7,
Art. 59-13
Article 34 Individual applications
Principles
The Court may receive applications from any natural person, non-governmental organisation
or group of individuals claiming to be the victim of a violation of the rights set forth in the
Convention.
The Court has broadly interpreted the concept of non-governmental organisations by

including commercial companies and legal entities governed by public law that do not
exercise any of the prerogatives of public authorities and that are completely independent
from the State. (Conversely, local authorities are excluded). Individual applications from
indirect or even potential victims are also admissible.
113
This principle is not currently applicable to Kosovo (due to lack of ratification).
Recent case law:
- Hindering the exercise of a right to take proceedings
- Pressure exerted by the authorities on a witness in a case before the Court involving
detention conditions
Judgement 10 February 2009 n°11982/2 Novinski v. Russia
- Expulsion despite an interim measure ordered by the Court

Judgement 24 February 2009 n°246/07 Ben Khemais v. Italy
Useful sources:
Publications:
"La Convention Européenne des Droits de l’Homme, commentaire article par article"
Under the direction of Louis Edmond PETTITI, Emmanuel DECAUX, Paul Henri
HUMBERT, Paris economia 1995, (updated in 2003)
"La Convention Européenne des Droits de l’Homme" F.SUDRE 6th edition PUF 2004
"La Cour Européenne des Droits de l’Homme" JP MARGUENAUD Dalloz
connaissance du droit 4th edition 2008
Websites:
www.echr.coe.int/ official website of the European Court of Human Rights – general
information, pending cases, judgements, decisions.
www.courdecassation.fr / (case law of the criminal chamber of the French Court of

Cassation)
Study: "La chambre criminelle de la Cour de Cassation 2002 2006 et la convention
de sauvegarde des droits de l’homme et des libertés fondamentales".
114
eulex–Kosovo.eu/ (law review 2009 criminal law)
____________________________
115

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Twinning Project KS 08 IB JH 02

EU-LER “Legal Education System Reform”

1.2. Basics of European Law

1.2.2. Primary Law (has priority)

1.2.3. Secondary law: Art. 288 TEU

1.3.3.1. The supremacy of European Law over national law

Effect of the collision with national law

1.3.3.3. All national institutions are bound by European law

1.3.3.4. Third party effect of basic freedoms

1.3.3.5. Restrictions of basic freedoms of the citizens have to be

1.3.4. Interpretation methods in European law

1.3.4.2. European particularities

Ad b.: systematic position – systematic interpretation

Ad c.: genesis of a rule – historic interpretation

Ad d.: ratio of a rule – teleological interpretation

1.3.5. Preliminary Ruling

1.3.5.2. Details of the Reference

Out of these points two need to be enlarged upon

Ad a) Formulation of the question

Ad b) Account of the facts and the legal problems

1.3.5.3. Checklist for references

1.) The procedure is suspended.

- Reference needs to be precisely and clearly formulated.

4. Which court has to make a reference?

1.3.6. The effect of directives and how to work with them

1.3.6.1. What effect do directives have?

1.3.6.2. How to interpret directives?

1.3.7. State liability for breach of EC law obligations

- The infringement is a qualified or considerable one.

1.3.7.2. Liability for the executive body

1.3.7.3. Liability for the judiciary

2.1. Procedure Law (in relation to Civil or Commerical Law)

dd. When there is special jurisdiction according to Art 5-21.

Second alternative (1 a): all other contracts

(b) Actions pending elsewhere and related actions:

b. Main points of the content

dd. Date and costs (Art. 9, 11):

ee. Other means of transmission (Art. 12 -15):

2.1.3. Taking Evidence2

a. Application (Art. 1):

b. Main points of the content

ff. Special rules for direct evidence: see Art.17.

2.1.4.1. Enforcement for uncontested claims.

(1) Application (Art.2, 3):

(2) Main points of the content

2.1.4.2. Enforcement of contested claims.

2.1.5. European small claims procedure4

(c) The main points of the following process:

- Languages and translations (Art.6):

2.1.6. European order for payment procedure5

2.2. Substantial law.

2.2.1. The law applicable to contractual obligations (“Rome I”)6

Freedom of choice (Art.3)

Scope of the law applicable (Art. 12):

2.1.2. The law applicable to non-contractual obligations (“Rome II”)7

- Scope of the law applicable (Art. 15):

c. Review clause (Art. 30):

2.1.3.3. Business and Enterprise Law

2.1.3.4. Cartel Law

2.1.3.5. Commercial Law

2.1.3.6. Intellectual Property Law

b. Trade Marks and Geographical Indications

e. Plant Variety Rights