EUROPEAN LAW

Prof. Leonor Rossi

2016/2017 First Semester

Manuel Puerta da Costa

Beginning of a theoretical class

Theoretical Class 1 and 2: Beginning of the explanation of a

Case
European Courts:

- ECJ (C) Beginning of practical class

- General Courts (T)

How the Union started?

Winners were afraid that Germany developed its steel industry.

ECSC (PARIS) 1951

It appeared Schumann, he used economics to stop the war. How?

- Embargo
- Partnership: Belgium, Netherlands, Luxemburg, France, Germany and Italy

Agreeing on what?

- 50 years of piece
- Treaty of Coal and Steel

It was signed in Paris!

Created 4 new institutions:

 Council of Ministers
 High Authority
 Assembly
 Court of Justice

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Coal and Steel Comunity Design

- Executive Body
- Council of Ministers
- Court – in Luxemburg

Treaty of Rome 1958

Creation of the EU (With EEC and EURATOM)

No sunset clause – in force indefinitely

In 1958 it was created the European Economic Community which agreed in:

- Free trade of goods, services and capital

- Free trade of workers

Three entities:

- ECSC: Coal and Steel

- EURATOM
- EEC

They have one common court because there weren’t resources to have one for each. But there
were three executive commissions and councils of ministers.

BUT...

In 1966 they merged:

Merger Treaty:

- Combined the three executive bodies: only one comission (of EEC) and one Council (of
EEC).
- Legally independent
- Executive merge

Current European Political Design

- Parliament
- Court – European Court of Justice – General Court
- Commission
- Council of Ministers
- European Council

There is a clear problem of institutional design because there are too many members.

1969 – Monetary Union

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European Courts Ways of Acting:

- Preliminary Rulings: ECJ advises the national courts on what to do

- Direct Actions: You vs. Comission
- Case Law can come from General Courts
- Cases can begin in the national court.

Codes:

C 26/84 P

This means it is the case number 26 in the year 1984, on the court of justice and it is an appeal.

If instead of a C have a T it stands for General Court.

A F would stand for Civil Service Tribunal.

Treaties

They have a signature date and the entry into force, that can take two years.

In the basis of Treaty of Paris 1951 and Treaty of Rome 1958 were creating some amending
treaties: SEA 1987, Maastricht 1993, Amsterdam 1999, Nice 2003 and lastly Lisbon 2009.

These can’t be read isolate from the predecessors.

A treaty with its amendments is the consolidated version.

Maastricht Treaty 1993:

In this treaty it was formally created the European Union broken in two treaties:

- TEU: new union

- TEC: about economics

Treaty of Lisbon 2009:

- Amends the treaty of Rome (TFEU) and the Treaty of Maastricht.

- It is amending and a consolidated version
- Entered into force in December 2009

EXAM QUESTION “In what year does the treaty of Lisbon entered into force? And month?”

EXAM QUESTION “How many are the EU countries? Name them.”

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Voting for a decision:

- First one man, one vote – so France have 100000 people it would have that many
votes
- Then 1 states, 1 vote
- In the 60’s was created the Qualified Majority Vote:
 At least 5 votes
 France stopped appearing in the meetings because they wanted Veto – Empty
chair crisis
 Empty chair policy – resolve each issue with a gentleman’s agreement. When some
state really really really wanted a decision to pass they allowed Veto (unanimity).

Sources of Law:

- Binding Instruments:
 Treaties – like a constitution
 Regulations – is like a national law, everyone has to respect it.
 Directives – 18 directives tell the directives of 10 countries that they have
to clean their waters. It is binding. Is like a political way to make an order,
but is not a law.
 Decisions – only addressed to the MS. Is not obliged to affect all states and
the affected ones must be notified. It has direct applicability as the
decision enters in force without further national proceedings.
- Non Binding Instruments:
 Recommendations: No one respect it. Are only signs of disapproval
 Opinions: An advocate general recommends the court to make a certain
decision. The judge can do whatever he wants. It is non binding!

Van Gend en Loos 26/62

Main subject: Supremacy of the EU law

Context:

- He used to import Urea (liquid) to his country (Netherlands) from Germany.

- Some day the tax instead of being 10 per liter, became 12 per liter!
- But the article 12 of the TEEC says that no new customs duties and no increase in the
existence ones
- But the argument of BENELUX was that that was not a new tax, and it wasn’t an
increase, it was a change to a new level of tax
- As it is an internal affair, the Dutch State said that it of was a question of constitutional
court as the treaty was accepted under its acceptance. Van Gend couldn’t question it
to ECJ as it is an exclusive competence of the commission

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Decision of ECJ:

- Citizens can demand preliminary ruling from the ECJ (ask the ECJ to advise the national
court on what to do)
- Against the A.G., it decided that the treaty could be applied
- National Law can’t breach the European Law. If it happens the national court must
ignore any national law conflicting with EU Law
- The validity of an European Law cannot be assessed by reference to the National Law

Conclusion:

- First time European Law supreme over National Law. It makes sense because European
Law is accepted by constitutional courts since are them that approve treaties under
constitutional principles).
- EU law enters into force without further proceedings at national level (Direct
Applicability)
- Self executing Rule – direct effect: clear, precise and unconditional on any national
measure

Practical Class 1
Case Law – source of law

Normative Development:

Pre-Regulation 49/01:

- In 1992 declaration 17º of the treaty of Maastricht stated that Public Access to
Documents should be improved
- In 1992 another similar declaration was made in Birmingham
- In 1993 another meeting, this time in Copenhagen, to discuss A.D.
- In 1993 the first rules on access to documents were made (in the Code of Conduct)
- In 1997 access to documents was sum as rights (Art 255º of EEC, and 15º of TFEU) in
the treaty of Amsterdam

Code of Conduct

- The public will have the widest possible access to documents held by the Commission
and the Council
- It wasn’t a binding neither a non binding instrument (not a treaty, regulation or
directive, neither Recommendation or Opinion)
- It was enforced until 2001
- It contained important rules on Access to Documents
- Treaty of Amsterdam appeared to be a supplement of C.C., but the first time someone
tried to use it (Petrie vs. Commission) it hadn’t direct effect

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Regulation 49/01

- Finally in 2001 was created regulation 49/01 with the purpose to give the fullest
possible effect to the right of the public access to documents.
- It has exceptions

Practical Class 2
C-58/94

Netherlands vs. European Council

Netherlands (and Parliament) vs. Council (and Commission)

Main subject: Code of Conduct

Important Points:

- Declaration 17º (explained before)

- Birmingham Declaration (explained before)
- Communication 93/C 156/05 – exceptions may exist on access to documents
- Code of conduct direct effect
- Treaty of Maastricht was in use

Development:

Netherlands:

Pretend: Argument: Decision:

Annulment of Council
Decision 93/731/EC
Annulment of Article 22 of
the Rules of Procedure
Annulment of Code of
Conduct 93/730/EC
It is a fundamental Not Accepted: The
right of internal council is allowed to
organization adopt measures in
order to control the
access to
documents in its
possession
Exceeds the Rejected: An
confines of the rules institution is
governing the empowered to take
internal measures regarding
organization of the its internal
Council organization
Does not constitute Inadmissible:
an act having legal Voluntary act, not
effect but a text of a intended to have
political nature legal effects
setting out political

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 agreements.

Council:

Pretends: Argument: Decision:

Appeal should be Different grounds of
upheld Netherlands
Government Admissible
Parliament
intervention should
be inadmissible

Final decision of the Court:

Application dismissed since the three “asks for annulment” do not have legal effects.

An action for annulment must be on something with legal effects.

Netherlands pays court and their costs.

Importance of the case:

- Transparency
- Confidence and more trustable institutions
- C.C. was not admissible

EXAM QUESTION “What was the case in what the legal basis of Access to Documents was
defined? What does that case challenge?”

Petrie vs. Comission

Main subject: Direct Effect

Important points:

- Declaration 17º (Treat of Maastricht)

- Article 255 EC: Any citizen of the Union, and any natural or legal person residing or
having its registered office in a Member State, shall have a right of access to European
Parliament, Council and Commission documents.
- Code of Conduct – Important article: refuse access to any document where disclosure
could undermine the protection of the public interest

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 - Regulation 1049/2001

Context:

- Applicants requested access to documents (Petrie)

- Commission refused
- Commission brought the matter to the Court of Justice

Development:

Arguments of Petrie Based on Arguments of Commission Court decision

Reinforce transparency; No Right of access can be No direct
limit on the exercise of the denied; applicability.
rights expressed on Article Article 255 Article 255 EC does not have Arguments 1 is
255 EC direct effect;
unfounded, so it
Principles and limits still
must be rejected
needed to be defined

Access to documents both Request for the documents Commission is not

drawn by the Community must be made to their obligated to grant
and held by them author Inadmissible claims that documents.
Authorship rule as a Decision 94/90 Protection of public interest
Arguments 2 is
restriction on transparency is binding in nature
unfounded, so it
Strict interpretation of public
interest must be rejected

The rejection lacked legal Authorship rule explained Could affect public
basis, grounds given were clearly interest.
too general The rejection of the draft Arguments 3 must
Infringement proceedings Article 253 EC generated by the
be rejected
are carried out with secrecy commission was for the
Do not distinguish good of public interest
documents according to Documents belonged to the
category same category

Decision of the Court:

- Not clear

- No direct Effect

- Dismiss the action

- Orders the applicants to pay defendant’s costs and their own.

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Compare Code of Conduct with Regulation 1049/2001:

Code of Conduct Regulation 1049/01

The PUBLIC will have the widest possible Article 2 – 1. and 2. : “any citizen of the
access... Union” “Institutions MAY grant access to any
natural or legal person not residing or not
having its registered office in a MS
So it may be rejected to “outside” people
A Chinese citizen have the right to access to
documents if resides in EU – you are an
applicant by right (2.1)
You don’t have to explain why you need a
document (Petrie needed because of C.C.)
If you are American you can ask a Portuguese
friend to ask for a certain document. But if it
is refused (unlikely to be) you can’t go to
court – you are an applicant by grace (2.2.)

Theoretical Class 4
Theories relating International Law and national Law:

- Monism: the last one to legislate is valid. International law is self executing within the
national system
- Dualism: national law incorporates international law. To have binding effect, rules of
International Law must be transformed into national legal system.

EU Law is none of them!:

- It will always have more power than national law

Case 6/64

Costa vs. Enel

Main subject: Supremacy of EU Law

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Context:

- Costa is a shareholder of ENEL

- ENEL is an electricity Italian company
- ENEL was to be nationalized, but Costa didn’t want that

Development:

- He got himself sued and now that he is already in national law, he wants to go to court
of first instance and demand EU law over national law
- This could only be a public case so he would have to go to the Commission
- He went to Italian Constitutional Court and ECJ
- He got different answers
- EU didn’t want to set a precedent, because nationalizing was a big trend in Europe

Conclusion:

- EU law can’t be breached by national law

- EU law is supreme, only if it has direct effect!
- And “competition law” (about nationalizing) was not precise, clear and unconditional

Case 106/77

Simmenthal II

Main subject: Direct Applicability

Context:

- An Italian truck full of meat wanted to cross the border, from France
- IT stops the truck and say NO!
- IT wants to check the meat for hygienically conditions and make Simmenthal to pay a
fee – what IT really wants is to increase France’s costs of production in order to sell
more Italian meat

Development:

- Simmenthal said they want to be protected by the Rome Treaty

- He argued that this is a Measure of Equivalent Qualitative Restriction: forbidden by the
treaty of Rome
- Tax authority argued that judge must defend national law, and so impose the tax!

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Decision of ECJ:

- ECJ agreed on MEQR and made tax authority to repay the fee plus interests
- National Law can’t breach EU law
- National Law nothing have to do with this because is an independent source of law
- EU Law is directly applicable in all MS from the first day

Conclusion:

- ECJ created the direct inapplicability of National law that conflicts with EU Law
- EU Law supremacy and direct applicability

Theoretical class 5
When a country signs a treaty, it loses its sovereignty (“soberania”;”poder”) to the union.

Does this piece of legislation need further legislation in more detail? If not it is directly applied.
A formal definition of Direct Applicability would be:

- It is a self executing provision of EU Law that is automatically binding without further

enactment

Direct effect:

- If a provision of EU law has direct effect, individuals may enforce it in national court.
- Has to be clear, precise and unconditional on any national measure

Case Internationalehandelsgesellschaft

Main subject: EU Law vs National Law (Constitution)

Context:

- There was open slots for exports of corn in EU

- Internationale (company) applied and got a slot
- Paid a deposit to make sure they export
- They did not exported everything
- So they didn’t get their deposit back (only in case of emergency deposits were
returned back when a company didn’t export everything) – EU Decision
- But according to German Law they should receive it back (under the principle of
proportionality)

Development:

- Company complains to a German Court and asks for the application of national law
- German Court pass the case to ECJ

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 - Validity of EU measure can’t be affected by allegation that it is against rights on
national law
- EU law can’t be assessed by reference to the Constitution
- EU law incorporates the fundamental principles of an MS, so it isn’t supersede by the
constitution

Conclusion: ECJ states that EU Law is independent from the Constitution , and is not forced to
respect its fundamental rights

Vertical direct effect:

- Citizen vs. State

- Individual sue the state
- Examples: Van Gend en Loos and Costa

Horizontal Direct Effect:

- Citizen vs. Citizen

- Example: Defrenne Case

Defrenne Case

- Women worked in a airplane private company

- She got fat
- And was replaced by a handsome man
- He was better paid than she was
- Law: equal pay for equal work between men and women
- But it was not clear since a different interpretation could be: same work value, equal
salary
- And handsome man can be considered more valuable

Reyners Case

- Reyners grew up in Netherlands, studied there and lived there all his life
- Because he was a Belgian Citizen he could not practice law in NL

Theoretical class 6
We’ve been talking about treaties, we will start talking about Regulations

Leonesio vs. Minister of Agriculture

Main subject: Direct Applicability of Regulations

Context:

- Orsolina Leonesio was a farmer

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 - She read on the OJEU that for each cow killed she would receive money
- So she killed all her cows and went to Rome to ask for her money
- But they didn’t have money to pay it

Development:

- The regulation was negotiated in Brussels and published in OJEU, and entered into
force 20 days after publication
- The regulation have direct application and it is binding
- Her rights should be applied immediately
- Minister has the positive obligation to pay to Leonesio, and the negative obligation
that he can’t touch the regulation

Court decision:

- You failed to respect obligations, you have to pay Leonesio

Case 34/73

Fratelli Variola vs. Administrazione Italiana delle Finanza

- Regulation have direct effect

- It confers rights which national court must protect
- MS can’t touch regulation

Case 36/74

Walrave & Koch

Main subject: Horizontal Direct Effect

Context:

- Two netherland workers wanted to be hired by a Spanish team of cyclism – Barcelona

(private party)
- But the Fed rules say that teams must be composed by same nationality members
- So the NL workers sue the Federation

Development:

- European Regulation do not permit discrimination on nationality

- Fed rules have to be unapplied – vertical direct effect ?????
- Regulation has horizontal direct effect over federation

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Exceptions on horizontal/vertical direct effect (article 288):

- Amsterdam Bulb: “you will be punished with sanctions defined by the state” – not
unconditional
- AAMA

Practical class 3
- Institutions – Article 13 TEU
- History:
o 1993: Code of Conduct was produced by Council and Commission Top down
o 1996: Parliament joined the code of conduct strategy
o ...Other bodies and agencies
- Only these three institutions adopted the Code of Conduct
- Treaty of Amsterdam “Any resident/citizen of EU have a right of access to European
Parliament, Council and Commission documents…”
- Regulation 1049/01 states that its principles should be applied beyond the trinity
(council, commission and parliament)
- Article 15 of TFEU do not have direct effect - “Any resident/citizen of EU have a right of
access to European Parliament, Council and Commission documents…subject to…”
- Locus Standis “You don’t have to say why you need the document”

Theoretical class 6
We can distinguish vertical direct effect upwards and downwords:

- Ven Gend en Loos it goes upwards because VGL was the applicant and it was against a
superior

Viking case:

Context:

- Viking was an airplane firm situated in Finland

- But wages were too expensive there
- So they wanted to move to another country
- But Viking’s workers didn’t want to live their families
- Private company vs. Individual – First time of horizontal direct effect

Development:

- Viking used the Free Movement argument!

Article 258

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 - It allows the commission to bring an action against the state
- Everytime an individual wanted to sue the state, he had to do it through the
commission since the article 258 only can be used between public parties
- So court created conditions so individual can sue the state, and help commission on
overloading

Van Duyn vs. Home Office

Context:

- Van Duyn was dutch

- She had a proposal to work at the Scientology School in England – that was a religion
that wasn’t well seen in London
- She went on a vacation in Mallorca and met an English Scientologist.
- And went to England with him
- When she arrived there they didn’t let her pass since she was going to work with
Scientology
- Tom couldn’t be expel too because Intenational Law don’t let you expel your own

Development:

She argued with:

- Freedom of Movement
- Discrimination

It has direct effect EXCEPT with public policy!

Important Articles for Midterm

Merger Treaty: Article 9(1) of the Amsterdam Treaty

Van Gend en Loos: no new customs duties: article 12 of the TEEC

In 1992 declaration 17º of the treaty of Maastricht stated that Public Access to Documents
should be improved

In 1997 access to documents was sum as rights (Art 255º of EEC, and 15º of TFEU) in the treaty
of Amsterdam

Netherlands argument: Annulment of Article 22 of the Rules of Procedure

Petrie: Article 255 EC; 253

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Exceptions on horizontal/vertical direct effect (article 288):

Institutions – Article 13 TEU

Article 15 of TFEU do not have direct effect

Everytime an individual wanted to sue the state, he had to do it through the commission since
the article 258

288 TFEU: Sources of EU

5 TEU: Principle of proportionality/subsidiarity

Articles of Free Movement of Goods: 28, 30, 34,36

MEQR: 34/35

157 TFEU: Defrenne same salary

Freedom of movement of workers (VIKING): 45

Non discrimination nationality: 18

Commission can bring MS to ECJ: 250

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After Midterm

Theoretical class 7
Directives

- Not addressed to individuals, only to Member States

- Example: no sailing on the river Douro, to reduce pollution

Deadline for the

national law to
Order be created

|
Date in which New national
the directive law must be
is issued enforced

Theoretical class 8
Ratti

- Mr. Ratti had a fabric of paints and solvents

- Brussels issue a directive to that Ratti’s country “You have to change all your labels.
You have until 2009 to change paints’ label and until 2018 to change solvents’ label.
- In 2010, Mr. Ratti changed all its labels – paints and solvents.
- But its government arrests him because it’s forbidden by national law to make this!

2009 2017

SOLVENTS PAINTS
2010 2010

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 - Although by national law this is forbidden a directive come out saying this is allowed,
and that European law should be enforced by 2010, so he uses VDE and gets out of jail
- But... For paints, the deadline wasn’t reached yet, and so national law can still be
enforced. EU law is only applicable after deadline. So he stays in jail!
- ESTOPPEL Doctrine: when state doesn’t comply with directive deadline, it is stopped
from coming against the citizens. (As in solvents’ case)

EXAM QUESTION: “In what case does the State illegitimately punished a private party when
deadline was already reached, and the state did not complied?”

EXAM QUESTION: “In what case does the State legitimately punished a private party when
deadline wasn’t already reached?”

Becker – VAT model

- Becker has the job of charging VAT to some receipts

- Directive: You have to reduce VAT from 20% to 15% until December 2009
- In December 2009, Germany didn’t comply
- But in March 2010 asks for one more year to comply, commission allows.
- So the new deadline is December 2010
- So until December 2009 – Government wins
- From January to March of 2010 – Becker wins
- From March to December 2010 – Government wins
- If in December of 2010 it still is not enforced – Becker Wins
- If it is enforced – end of story

Dec 2009 Dec 2010

First deadline Second deadline

Gov wins Becker Gov. Becker

20% 20% 20% 20%
Extension

March 2010

Is like we are on pre-deadline

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EXAM QUESTION: “In what case does the State illegitimately punished a private party when
deadline was already reached, and the state did not complied?”

Practical Class 4
What is a document?

Code of Conduct Regulation – article 3

Held by Council or Commission Written or saved in electronic
Written text Activities/Decisions of the sphere of
institutions
Done by institutions – author Held by institutions

Dufour Case – What is a document?

- Saved Content
- Any content
- Any Size
- Must be related to institutions’ sphere
- Nature of storage is irrelevant

Documents vs. Information

“I want the names that were on Report X” – commission should give because it is a document

“I want the names of the wives of the people who attended the meeting in 4th of July” –
information: there is no minute saying the names of attendant’s wives, so a new document
would have to be made. Commission should not give the info

Partial access to documents – Hautala Case (art 4 of C.C.)

- I want that document

- There’s an exception and you can’t have some parts
- Ok give me only the parts that are not covered by the exception
- That would entail adaptation of documents
- The CFI however considered that a general principle of access to documents had been
established. And thus, unless in cases where the volume of the document or the
passages to be removed would give rise to an unreasonable amount of administrative
work!

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Theoretical Class 9

Direct applicability of a directive:

- Never directly applicable to people, only to MS

Direct effect:

- State can’t use direct effect against citizens: ESTOPPEL

- Citizens can use it against the state after deadline

Helen Marshall Case – Broad concept of State

- Helen teaches young nurses

- And the hospital says to her “when you are 60 years old you should go home”
- But she is already 59 and she wants to work until 65. Men’s retiree age is 65 so she
calls for equality.
- But it depends if the hospital is private or public. If private you can’t do nothing, if it is
public you can sue the state with vertical direct effect!
- Broad Concept of State: if a school is public you can have vertical direct effect, it does
not have to be the State.

Foster vs. British Gas- Broad concept of State

- John Foster is 59 and he wants to retire at 60

- He calls for equality since the age for women to retire is 60!

Constanzo - Broad concept of State

- This guy named Constanzo wants EU law to be applied in Calabria (Italy)

- But he has to fight because in a little town they know nothing about EU Law
- National law retire’s age is 65.
- EU law must be applied in “All organs of the Administration, including decentralised
authorities such as municipalities are obliged to apply those provisions”

Theoretical Class 10

Directives formally:

MS can:

Directive Issued - Comply

- Improper implementation
Implementation period
- Non compliance

No VDE or HDE VDE

MS have a positive obligation of No HDE:

implement it, and have a
20 negative obligation to not
-
-
Indirect effect
Incidental horizontal effect
create measures that “run” - State Liability for Damages
from the objective

Judges have no positive

Recreb vs. Paula Dori – No HDE on directives

- She signed a contract on the street that she hadn’t read. This contract states that she
had to pay 6000 to learn English online.
- But when you sign a contract in the street, civil code gives you 2 weeks to annul it.
- But the contract was signed in Italy, and national law says 9 days!
- This language school was kind of a thief. It sold Paula’s liability to Recreb that was a
private institution and so Paula couldn’t use vertical direct effect!
- And so Recreb sues Paula!
- Italian law haven’t implemented the directive changing to “14 days” instead of “9
days”.
- But that directive was problematic since it wasn’t very clear: “deadline may be at least
doubled”
- So no HDE, and Paula pays!
- Court tries to find solutions to cases like this!

Von Colson – Improper implementation (Vertical) – indirect effect

- There is a competition to decide what will be the security guard of a male prison
- Candidates are: two girls and two guys.
- The director says “Girls I’m not gonna hire you because we will have a war here if I
do!”
- Mrs. Van Colson and her colleague sue the prison director on equal treatment on labor
law!
- She wants the job, not a compensation!
- German law says that a person who is discriminated has the right of a nominal
compensation valued with their spent on the discriminated issue (in this case she has
the right to receive a compensation for the money she spent on going to the interview:
bus ticket)

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 - But ECJ directive say that a compensation is not nominal! Although the directive is not
CPU.

(What would happen if the directive was applied correctly in Germany? She would get a
compensation in the terms of ECJ – this “supposition” was named Indirect Effect)

- So she ended up getting the compensation she would get if the European directive was
well applied in Germany (indirect effect).

Marleasing vs. La commercial de Alimentacion (Baviera) – Non Compliance (Horizontal) –

indirect effect

- Baviera owes Money to Marleasing

- So what it does is transfer all its assets to a new firm “La commercial de alimentacion”
and make Baviera null and void.
- Marleasing says that L.C.A. has no reason to exist, it is only to avoid paying its
obligations - It uses the “Lack of Cause” Spanish rule
- But there was a directive annulling that law that Spain haven’t implemented. So in EU
law “Lack of Cause” argument/rule does not exist anymore.
- Marleasing required all national legislation to be interpreted in the light of EU law:
indirect effect new point of analysis
- So, smart L.C.A. invoke ECJ to an harmonious interpretation (a.k.a. indirect effect) that
works like a supposition “what would happen if the directive was applied?”
- Case solved: Marleasing didn’t get the money 

“EXAM QUESTION: Is Marleasing a case of Harmonious Interpretation or State Liability of

State? Who wons the case? Why do you think the ECJ decided that Marleasing lose the case?”

Practical Class 5

Theoretical class 11
We’ve seen that harmonious interpretation means an interpretation of the case as the
directive was rightly implemented!

Limits on harmonious interpretation:

- Court do not use h.i. if contra legem, for example:

 National law: Blue
 Directive: Black
 New national law: gray
- But if:
 National law: label
 Directive: no label

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  New national law: label
- Can’t go against the law!
- Can’t use H.I. against a person if it increases its criminal liability: 2 years, 6 years if H.I.

Francovich Case- State Liability of Obligations

- There was a directive that says “when you have profit, you have to put x% in a fund,
and you can use it to pay your workers when you don’t have liquidity”
- But Italy didn’t implement it
- Workers knew they couldn’t sue the firm, because there was no HDE, and so they sued
the state for no compliance:
 The directive was clear
 It creates rights
 It was failed to implement and created damages
- So ECJ says that state is liable for its own fail to implement and compensate
Francovich!

Brasserie Case

- Brasserie (French company) was forbidden to export beer to Germany

- It created damages to the company and so they received a compensation

Factortame Case

- Spanish captains were forbidden to enter with their fishing boats in England
- This created damages because they were not fishing
- ECJ applies VDE, and Spanish captains get compensation

Kobler Case

- Kobler travels around the world teaching, he is from Austria

- Austria creates a rule “if you work all your life in Austria you receive a bonus”.
- Kobler goes to court stating “Free movement of goods”
- Civil court goes to ECJ and asks for a preliminary ruling
- ECJ sends references to Austria to solve the case
- But Austria apply it wrong
- Kobler goes to Civil Court and says he has been damaged!
- ECJ: “There was a breach, but not sufficient for compensation”

“EXAM QUESTION: “Is Kobler a case in what the ECJ considers there is a serious breach of the
State? What are the consequences of this case for Austria? Do you agree with the case finale”

Ferreira da Silva Case

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 - The court refuses to apply EU law
- Serious breach of EU law
- Compensation!

Theoretical class 12
Sum up on directives:

 What is it? Instruction for the MS to change/make national law, instructed by the
Council, Commission or European Parliament
 To enforce your rights you go to national court and ask for the judge to talk to ECJ
 VDE – after the deadline and law and directive was not applied
 If directive is not CPU you can’t use it
 State can’t use VDE against you, because directive isn’t applied
 You can’t use a directive in court against a private party
 When the state does not comply to a directive, a private party can ask for
compensation (SLB) to the state in horizontal cases.

Practical class 7
Heidi Hautala importance:

- Regulation 1049 art 4/6 on rights of partial access says that: parts that are not covered
by the exceptions should be granted
- Principle of proportionality: must exist a balance between the work of the council to
get and make a new document with the harmless parts.

Exceptions of access to documents:

Code of Conduct vs. Regulation:

- From the first to the second, there was a decrease of situations where the institutions
can refuse access
- Now, the refusal must be explained.

Theoretical class 13
Cassis Dijon Case (Germany vs. Federal Admnistration for Spirits) – MEQR IA (second
definition of MEQR)

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 - Cassis was a drink that was banned in Germany
- They had drinks between the 0% and 14% (soft drinks) and others between 37% and
80% (hard drinks), Cassis had 30% so “it can’t enter our country, neither be produced
here, because people don’t know how many can drink”
- But Art 34 states: “you can’t impeed products that are produced in other MS to enter
your country”
- Art 36: exceptions where you can impede
- German Law “if the product has between 15% and 36% it can’t be in out country,
neither produced here or imported from other countries”: this is an indistinctly
applicable measure, because it applied equally to imported
- This is not a proportionate ban, since advising consumers for the “danger” of this drink
would have been enough
- Introduction of the Rule of Reason: You can apply a Indistinctly Applicable Measure
beyond article 36 – only if it is as necessary as proportionate
- Introduction of the Lawfully Introduced Rule: Mutual Recognition Law: If it is Lawfully
Introduced (legally produced and sold) in a MS, it must be allowed to travel to another
MS .
- Dual Burden: Product has already complied with Production rules of State A, now it
has to comply ALSO with Production rules in State B

EXAM QUESTION “What is Cassis Dijon? A mustard or a liqueur?”

EXAM QUESTION “Why was this case so important to EU law”

Theoretical class 14
- Customs Union: everything can travel (28/30 TFEU), can’t impose duties on imports or
exports.
- MEQR: prohibited banning rules (34)
- Allow MEQR (36)

Quantitative Restriction 1 – applies to imports: quota, bans, etc..

- I will only import 10 tulips

- I don’t import milk from Spain
- I’ll import the cow, only if it comes with a horse.

This are QR, this is discrimination

MEQR 2 – DA and IA – can apply to domestic or imports

- We don’t discriminate as long as you are a Portuguese speaker

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 What matters here is the effect that the restriction has, for example:

Procureur du Roi vs. Dassonville- MEQR (its definition - first)

FIRST DEFINITION OF MEQR.

- Whisky is Scottish
- There are many producers in Scotland falsificating it, so it can be not Scottish
- So Belgium when imports Whisky always demand a certificate saying that it was
produced by Scottish people
- However, France does not demand the certificate, stating that its consumers may
distinguish what Whisky is really from Scottish.
- So, obviously, the price in France is lower since it does not have to pay for a certificate
(8€ > 10€)
- So a Belgian guy – Dassonville – goes to France buy the whisky at 8€ and sell it in
Belgium at 9€
- But since he sells the Whisky in Belgium with no certificate he goes to jail
- But this is discrimination since products that are sold in another MS can be sold in
others MS!

Bavarian Lager Case - MEQR

- England prohibits the German beer to enter the country

- But the rule is being imposed from a MS to another
- Justification “England only sells beer that is cast condition”, but German beer is not
cast condition.
- This is an indistinctly applicable measure, since it applies to domestic producers and
imports.

Walter Run Case- MEQR IA

- In Belgium, Margarine packages are in cube and Butter packages are rectangle, that
way, consumers can distinguish between one and another
- So imported domestic products must have this shape!
- Indistinctly applicable measure!
- “You must change the shape of your packages” – not proportionate
- Mutual recognition (explained after)

“Is this is a IAM or DAM?” “Is this dual burden?” “Do they used the rule of reason?”

Practical class 8
Article 7:

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 Institutions may answer to the request of access to documents 15 working days after

15 working days

Grant access State reasons for refusal

YOU

15 working days

Confirmatory application so the

institution reconsiders the position

If the institution fails to reply 15 working days

entitles the applicant to

make a confirmatory application Commission’s decision

If the institution does not reply shall be considered a negative reply (but since there has been
no refusal, you can’t ask for its annulment!!

EXAM QUESTION “Is the Art 7 of Regulation 1049 a negative silence article? What is a negative
silence?”

Theoretical class 15
- Distinctly applicable (rules different for domestic and for imported products) – if it fits
on article 36
- Indistinctly applicable (same rule to domestic and imported producers) – may be
allowed under 36, and more than stated in 36

More than stated in 36 – rule of reason: proportionate criteria (First rule of Cassis)

- You can apply a Indistinctly Applicable Measure beyond article 36 – only if it is as

necessary as proportionate:
- Effectiveness of fiscal supervision
- Protection of public health
- Fairness of consumer transactions
- Defence of consumer

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Exceptions under the Rule of Reason:

- Cinetique
- Danish Beer
- Stoke on trent city council
- Rewe Central

Danish Beer Case- Beyond Rule of Reason (environment)

- In Denmark they only drink beer from bottles

- And so their “contentor de reciclagem” only has space for bottles, and not for cans
- So Spain cans can’t be sold in Denmark because they can’t be recycled.
- Denmark convinced the court that this was an environmental argument
- This was an indistinctly applicable measure beyond art 36: rule of reason

Second Rule of Cassis:

Introduction of the Mutual Recognition Law: If it is Lawfully Introduced (legally produced and
sold) in a MS, it must be allowed to travel to another MS.

Dual Burden (of Cassis):

- Product has already complied with Production rules of State A, now it has to comply
ALSO with Production rules in State B
- When the Rule is IAM, Cassis prevents State B from imposing such rules unless it (rule)
can be saved by a mandatory requirement:
 (i) Art 36 + (ii)Environment
 (iii) Rule of Reason
- Example: I’m producing apples, and I say that apples in Portugal have to be red,
because the Green ones have made 124 deaths in 2009 because of the “Apple Green
Monster”. So Spain producers in Portugal comply with this rule and only produce the
red apples. But in Germany they have they have a rule that only green apples can
enter the country. What now?
- Portugal can impose that IAM because of Rule of Reason – Public Health is
beyond article 36
- Germany can’t impose that IAM because of article 36 do not allow
- Otherwise Spain would have to produce red in Portugal and green in Germany.

Pasta Case

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Reverse Discrimination:

- Italy makes this to their producers

- Instead of making “life difficult” to foreign products (like imposing rules that are
already complied by domestic producers) they make life difficult to their producers
- They obey their producers to make only high quality pasta and the one that is worst.

EXAM QUESTION “Is this a MEQR case? Justificate”

Chocolate vs. Sucedamo Case

Disproportionate Rule:

- The only way Ferrero Rochet can enter in Spain is saying “it’s a chocolate substitute”

Ireland Shamrock

Disproportionate Rule:

- Ireland asked for label the ones who came from Spain
and Italy to say “Not made in Ireland”

NOT MADE IN IRELAND

Theoretical class 16
Article 36: Derogations from 34/35 – in this article there are exceptions in which the Member
States can prohibit/restrict imports or exports. These exceptions are from the following
grounds:

Cases on public morality:

Porn Case

- English students were passing the boarder: France to England

- As a joke one of them put in the other’s bag a porno magazine involving kids
- When they arrive to England the one with the bag goes to jail!
- On the basis of article 36, UK is allowed to stop imports: public morality

Doll Case

- English students were passing the boarder: France to England

- As a joke one of them put in the other’s bag a inflating doll

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 - When they arrive to England the one with the bag, but no jail although dolls are only
allowed if you buy face to face
- But this ban is discriminatory, to protect the industry, so it’s not public morality

Cases on public policy:

Regina vs. Thompson

- Coins in England were made of silver

- And it was known that if you sold them outside of England, you can make a profit
- So coins started to disappear
- On the basis of public policy “Coins with the face of the king are being melted, so stop”
- ECJ agreed

Public Security Campus Oil

- There was shipments of oil to the island

- But the country wanted people to buy from the national refinery since if there was a
storm shipments would stop.

Case on the protection of national treasures:

Italy souvenirs

- Tourists buy souvenirs from Italy

- This souvenirs are pieces of the coliseum and so Italy tax them
- ECJ “You can’t tax it! But if you are protecting the national treasure so much, why
don’t you ban foreign buyers?”
- But Italy wanted money and tourists!

Theoretical class 17
Selling Arrangements Case:

Schwarz Case:

- Schwarz marketed a non packaged chewing gum in Austria, and export it to Germany
- But in Germany it’s prohibited, due to public health, so this is justified by article 36
- But this can be considered in two ways:
 As packaging has a cost, it is a MEQR, and so according to article 34 it
can’t be demanded, and Schwarz can export it to Germany
 If the problem is public health, Schwarz have to wrap, or he can’t
export it! – how you sell: wrap or no wrap (selling arrangement!!!)

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Mars Case:

- Germany prohibits Mars chocolate to enter its country because it has a misleading
10% mark: makes consumer think that the +10% has no price increase, but it does
- Mars states that: “free movement of goods does not prohibit the marketing of snacks
with a certain presentation in a MS, that already is marketed with the same
presentation in another MS”
- So if it marketed lawfully in France, must be also marketed in Germany!

Practical class 9
Bavarian Lager – access to documents:

- Applicant:
 Asked to be on the meeting but refused
 Had the document refused because commission was not the author
 Asked for the minute, but names there were deleted
 But their names is private life, so exception on public interest does not
apply
 They are not individuals but institutions

- Commission
 You have to ask the authors, that are not us
 This is personal data
 Names are part of privacy

Theoretical class 18
From Cassis and Dassonville to here all the indistinctly applicable measures was on products
requirements like size, label, composition, etc...

But on Keck Case what matters is how you sell it – prohibition of selling arrangements! This
selling arrangements matter is beyond article 34

Keck Case

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 - In France it can be bought at 8
- In Italy it can be bought at 10
- So French buy it at 8 and sell it in France at a higher price!
- Principle of Keck:
 Selling Arrangement: the way the product is sold is each country’s
responsibility.

Tankstation Case

- We close the station on Sunday

- It has to due with each country
- So not caught by article 34

Theoretical class 19
Article 50 – leaving EU

Article 49 – Joining EU

Leave is easier than Enter. If Italy leaves it can demand Vaticano to leave too, but if Vaticano
wants to enter, Italy will vote against.

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