Eu Law Case List

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EU LAW CASE LIST
EU law (University of London)
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EU LAW CASE LIST
THE TREATIES AND THEIR SIGNIFICANCE

R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg
(1994) – A, sought judicial review of the decision by the respondent to ratify the Maastricht
Treaty, saying that it would increase the powers of EU Parliament without it having been
approved by UK Parliament and would transfer royal prerogative power to enter into treaties
without parliamentary approval – judicial review was refused
Brunner v EU Treaty (GER) (1994) – legality of German´s ratification of the Maastricht
Treaty was challenged, and the German Constitutional Court confirmed it to be compatible
with German Constitution
Pringle v Ireland (2013) – Irish politician argued that amendment of the Treaties should be
undertaken through ordinary and not through simplified revision procedure and EC Decision
was not validly adopted and that it was substantively incompatible with economic policy
provisions of the TEU  reference to ECJ: action dismissed, Decision 2011/199 applied to
internal policies and actions of EU and did not increase the competences conferred on EU
in the Treaties
THE INSTITUTIONS OF THE EUROPEAN UNION

Roquette Freres v Council (1980) – failure to observe the essential procedural requirement
is a ground for annulment of the proposed legislation, the Parliament´s must be consulted
when so required by the Treaty
REGULATIONS
Commission v Italy (Re Slaughtered Cows) (1973) – this case confirmed direct effect of
regulations, Italian government chose a wrong method of implementing a regulation and this
method cast doubt on the legal nature and direct applicability of that measure – all methods
of implementation were contrary to the Treaty which would have the result of creating an
obstacle to the direct effect of Regulations and of jeopardizing their simultaneous and
uniform application in the whole of Community
Variola (1973) – direct application of Regulation means that its entry into force and its
application are independent of any measure of reception into national law. By virtue of the
obligations arising from the Treaty and assumed on ratification, MS are under a duty not to
obstruct the direct applicability inherent in Regulations and other rules of Community law.
Strict compliance with this obligation is an indispensable condition of simultaneous and
uniform application of Regulations throughout the Community.
Simmenthal (1979) – applicant wanted to challenge the legality of certain Regulations and
notices which formed the legal basis of the Decision they wanted to contest, ECJ held that
applicant was directly and individually concerned by the decision, even though it was actually
addressed to the Member State

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DIRECTIVES
Van Gend en Loos (1963) – applicant was allowed to rely on a clause in a Directive which
the UK had not introduced into national law – state cannot rely on its own wrongdoing to
frustrate rights of individuals under directives
Pubblico Ministero v Ratti (1979) – a MS which has not adopted the implementing
measures required by Directive in the prescribed periods may not rely, on its own failure to
perform obligations which the Directive entails – individuals can claim against state rights he
or she should have had if the Directive had been correctly implemented
Marshall (1986) – right of a State to choose among several possible means of achieving the
objectives of a Directive does not exclude the possibility for individuals of enforcing before
national courts rights whose content can be determined sufficiently precisely on the basis of
the provisions of the Directive alone
Faccini Dori v Recreb srl (1994) – possibility of relying on Directives against State entities
is based on the fact that under A.189 a Directive is binding only in relation to each MS to
which it is addressed and has been established in order to prevent a State from taking
advantage of its own failure to comply with Community law – individuals may not rely on a
Directive to claim a right against another individual and enforce such a right in a national
court (horizontal NO, vertical YES)
Werner Mangold (2005) – Community law (here Article 6 establishing equal treatment in
employment and occupation) must be interpreted as precluding a provision of domestic law
such as that at issue in the main proceedings which authorises, without restriction, unless
there is a close connection with an earlier contract of employment of indefinite duration
concluded with the same employer, the conclusion of fixed-term contracts of employment
once the worker has reached the age of 52 – such legislation was not justified
Foster British Gas (1990) – national courts may use this 4-part test to decide whether a
body was an “emanation of state”:
i. Does it perform a public service? ii. Pursuant to a measure adopted by the state?
iii. Under the control of the state? iv. Does it have special powers going beyond
those of normal commercial undertakings?
DECISIONS
International Fruit v Commission (1971) – decisions are a third form of binding secondary
legislation - a piece of legislation that had been enacted as a Regulation was held by the
Court to be, in fact, a bundle of decisions
OTHER ACTS
Les Verts v EP (1986) – certain Acts of EP, though not mentioned in Article 288, bind third
parties and because they have “legal effects vis-à-vis third parties” are judicially reviewable
Commission v Council (ERTA) (1971) – Council resolution was held by the Court to have
a legal effect

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THE COURTS
Da Costa (1963) – preliminary ruling jurisdiction - A.267 is a procedure that has been
described as the backbone of the Community legal order, it ensures the unity of
interpretation of EU law
Rheinmühlen (1974) – trial judge has discretion as to whether to refer with exceptions to
matters which fall into scope of cases with compulsory reference – A.267(3)
Briekmeulen (1981) – what is a court or tribunal is for purposes of A. 267 determined by
EU and not by national law, CJEU indicated factors it would take to account – body in
question was an appeals committee form the registration committee established by the
Royal Netherlands Society for the Promotion of Medicine – factors: the body is established
by law, is permanent, is independent, has compulsory jurisdiction, has procedures that are
inter partes and applies rules of law
Dorsch (1997), El Yassini (1999) – not all of the factors must be satisfied
Corbiau (1993) – CJEU decided that Director of Taxation in Luxembourg was not a court or
tribunal for purposes of A.267, the Director was hearing an appeal from a decision of
Luxembourg tax authorities and CJEU held that he was not a court or tribunal as he was not
independent, he himself had an institutional connection with those who made the original
connection
Nordsee (1982) – case showed that where parties have decided by K that disputes will be
refered to an arbitrator and no public authority is involved in the decision to choose
arbitration, then that arbitrator is not a court or tribunal for purposes of A.267
Bulmer (1974) – Lord Denning laid down guidelines for discretionary reference:
• the decision on the Q of EU law must be conclusive of the case – decision on the Q
is necessary to enable it to give judgment
• national court can follow a previous ruling of CJEU but it may also resubmit a Q in
the hope of getting a different ruling
• where the point is reasonably clear and free from doubt, it may use the doctrine of
acte clair and not refer
• national court has a discretion which it should exercise with regard to: time lengths,
aim not to overload the court with too many references, formulate the Q clearly, point
must be difficult and important…
ApS Samex (1983) – Bingham drew attention to CJEU´s expert knowledge of Union law
and ability of the Commission and other MS to make representations in cases before CJEU
Else (1993) – Sir Thomas Bingham commented on where a referral should be made: “If the
question of Community law is critical to the court´s final decision, the appropriate course is
ordinarily to refer the issue to CJEU unless the national court can with complete confidence
resolve the issue itself… if national court has any real doubt, it should ordinarily refer.”
Hoffman-La Roche (1977) – it is not always mandatory for a court of last appeal to refer
and it is important to know that objective of the third paragraph of A.267 is to prevent a body
of national case law not in accord with the rule of EU law from coming into existence in any
MS

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CILFIT (1982) – court held there is no obligation to refer: if it is not necessary (where Q on
EU law will not determine the outcome of the case), where CJEU has already given a ruling
on the Q (even if the Qs at issue are not identical) and where the matter is an acte clair
acte clair – correct application of Union law acte éclairé – this applies where CJEU has
is so obvious as to leave no scope for any already given a clear ruling on the same
reasonable doubt as to the manner in which point in a previous case
Q raised is to be resolved
Köbler (2003) – it is possible to bring an action against a MS where breach of EU law was
by a court of final appeal, especially where it failed to make a reference as required under
A.267(3) –whether infringement of Union law was sufficiently serious when caused by a
decision of a national court was to be determined by whether the infringement was manifest
– here, on facts, there was not manifest infringement of Union law
Traghetti (2006) – Community law precludes national legislation which excludes State
liability for damage caused to individuals by an infringement of Community law attributable
to a court adjudicating at last instance, by reason of the fact, that the infringement in Q results
from an interpretation of provisions of law or an assessment of facts or evidence carried out
by that court
DECISION ADDRESSED TO ANOTHER PERSON:

Plaumann (1962) –decision was not of individual concern to the applicant and thus standing
was refused, i.e. they must be singled out in the same way as the initial addressee, they
must be part of a closed group or a closed circle of persons who were known at the time of
the adoption of a decision
Piraiki-Patraiki (1985) – two groups of applicants and one group was held to have standing,
CJEU held that the other group were not individually concerned, complex infrastructure was
not sufficient to establish individual concern, but those who already entered Ks for sale into
France to take effect during that period were given standing
UPA v Council (2002) – Advocate General Jacobs´ proposed a new test for individual
concern: “In my opinion, it should therefore be accepted that a person is to be regarded as
individually concerned by a Community measure where, by reason of his particular
circumstance, the measure, or is liable to have, a substantial adverse effect on his interests.”

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DECISION IN FORM OF REGULATIONS (regulatory acts):

- requirement of individual concern no longer applies to a Regulatory Act, only direct
concern
- generally, individuals could not challenge Regulations because their legal effects
apply in a general and abstract manner
TEST 1: THE GENERAL APPLICATION / ABSTRACT TERMINOLOGY TEST

Is it a true Regulation?
1. Is it phrased in general terms and applies to categories of persons viewed in a
general and abstract manner?
2. If yes, then it cannot be a disguised decision and cannot be of individual concern
to the applicant. – with one exception: Codorníu
3. Is the applicant part of a closed group?
TEST 2: CLOSED CATEGORY TEST

1. If the Regulation applies to a closed category, Courts may use this test in cases which
deal with a completed set of past events where Regulation related to a fixed, closed
set of traders and was therefore a disguised Decision.
CODORNÍU EXCEPTION
Codorníu (1994) – here, a measure was held to be a true Regulation and yet to be of
individual concern! – contested Regulation said that the word crémant should be used
exclusively for wines from FRA or LUX and applicant was making sparkling wines in SPA, it
was held to be a true Regulation of legislative nature and applied to traders in general, but
this did not stop it from being of individual concern to applicant because of the use of the
word crémant in his trademark
Buralex (1996) – CJEU applied the abstract terminology test to deny standing despite the
fact that the identities of the companies could be determined
Campo Ebro (1995) – the only iso-glucose producer in Spain was seeking to challenge a
Regulation which laid down sugar prices in Spain and General Court refused them standing
– it held that they were only affected in their objective capacity as iso-glucose producers in
the same way as any other trader in the sugar sector who actually or potentially is in an
identical position – it seems clear that judgment in Codorníu was determined by its particular
facts
Roquette Freres (1980) – there is another exception where the applicant was part of a
closed group which had previously been awarded a quota and was specifically mentioned
by name in an annex to the Regulation – company in this case was held to be individually
concerned like this
Greenpeace International (1995) – Greenpeace and other applicants specifically argued
for a liberalisation of rules on standing, but this was rejected by the CFI which restated the
Plaumann approach – it was held that interest groups do not have locus standi where
individuals they represent are not individually and directly concerned

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DIRECT CONCERN
Alcan (1970) – this case shows a very tough application of the test for direct concern,
Commission refused to increase the quota for aluminium allowed into Belgium and this
decision was challenged by the applicant who was an importer of aluminium, CJEU held he
was not a person of direct concern because even if Commission increased the quota, the
decision would not have required Belgium to increase it too and it might have decided not to
do so
Piraiki-Patraiki (1985) – although French government had discretion as to whether to
introduce the system of quotas provided, Court held that this was entirely theoretical
because FRA had applied for stricter quotas than had been authorised – French government
would clearly impose the quotas if authorised to do so – therefore there was in fact no
discretion on the part of French government and the decision of the Commission was of
direct concern to the applicants
Bock (1971) – Bock was held to be directly concerned because the German authorities had
informed him that they would refuse his application as soon as they received a decision from
the Commission permitting them to do so
Inuit Tapiriit Kanatami (2011) – General Court determined that scope is not limited to
delegated acts as regulatory acts constitute a more general application – the meaning of
“regulatory act” must be understood as covering all acts of general application apart from
legislative acts. Consequently, legislative act may form the subject-matter of an action for
annulment brought by a natural or legal person only if it is of direct and individual concern to
them. – ECJ supported this.
World Wildlife Fund (1997) – infringement of an essential procedural requirement
constitutes a valid ground for a review, here it was the failure to give reasons for a refusal of
access to Commission documents
Roquette Freres v Council (1980) – failure to observe the essential procedural requirement
is a ground for annulment of the proposed legislation, the Parliament´s position in the EU
legal order had developed into a stage where it must be consulted when so required by the
Treaty

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GENERAL PRINCIPLES OF EU LAW

DIRECT EFFECT
TREATY ARTICLES, REGULATIONS – both vertical and horizontal direct effect
Van Gend en Loos (1963) – applicant was allowed to rely on a clause in a Directive which
the UK had not introduced into national law – state cannot rely on its own wrongdoing to
frustrate rights of individuals under directives  Article of a Treaty could have direct effect
if:
i. it is clear and precise
Azienda Agricola (2001) – provision must be sufficiently clear and precise to be

enforced by a court, here a Regulation on improving efficiency of agricultural
structures was not allowed to be relied on at a national court by limited
companies seeking to obtain the status of farmers practising farming as their
main occupation where legislature of a MS has not adopted the exact provisions
necessary for implementation in the national system
Commission v Italy (Re Slaughtered Cows) (1973) – this case confirmed direct
effect of regulations, Italian government chose a wrong method of implementing
a regulation and this method cast doubt on the legal nature and direct
applicability of that measure – all methods of implementation were contrary to
the Treaty which would have the result of creating an obstacle to the direct effect
of Regulations and of jeopardizing their simultaneous and uniform application in
the whole of Community
Tachographs (1979) – MS cannot apply incomplete or selective manner

provisions of a Community Regulation so as to render abortive certain aspects
of Community legislation which it has opposed or which it considers contrary to
national interests – for a State to unilaterally break the equilibrium between
advantages and obligations flowing from its adherence to the community brings
into Q the equality of Member States
ii. it is unconditional
iii. its operation does not require a legislative implementing measure on part
of the state
iv. (it must lay down a negative prohibition rather than a positive obligation)
Alfons Lüticke (1966) – case where the fourth requirement was dropped, and the other
three suggesting that direct effect will be the exception rather than a rule have been whittled
away
Defrenne v SABENA (1976) – it was held that Ms Defrenne could bring an action against
her employer for breach of a Treaty Article requiring equal pay for men and women,
requirement that a measure must not be dependent upon further action is not the obstacle
that it appears, wherever Treaty includes time limit within which such further action should
take place, Court has held that, once time limit has expired, measure has direct effect

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DECISIONS – both vertical and horizontal effect

Grad (1970) – decisions are binding in their entirety on those to whom they are addressed,
CJEU held that Decision can have direct effect – here a national of a MS to which a Decision
had been addressed could invoke that Decision in the national court, CJEU emphasized that
this would increase the effectiveness (effet utile) of the Community measure
INTERNATIONAL AGREEMENTS
International fruit Company (No.3) (1972) – provisions of the international agreement
General Agreement on Tariffs and Trade were held not to have direct effect because they
were insufficiently precise and unconditional for direct effect to apply
X Germany v Council (1994) – under very limited circumstances a GATT provision could
prevail over an EC provision but only if relevant EC provision expressly referred to the GATT
provision!
Polydor (1982) – free trade agreements were also held not to be capable of creating direct
effect as their aim was not to create a single market, here similar terms used in Treaty were
used in an agreement between EEC and Portugal, but this was not a sufficient reason for
applying direct effect since the agreement’s rules disputed were on protection of industrial
and commercial property rights and they were subsidiary to Community rules on the free
movement of goods
X Kupferberg (1982) – another provision of the same agreement as in Polydor was found
to have direct effect because the provision fulfilled the conditions and fell within the purpose
of the agreement – Portugal was not a MS at the time but did become soon after
DIRECTIVES – only vertical direct effect

Van Duyn (1974) – Ms van Duyn could rely on a clause in a Directive which the UK had not
yet introduced into national law, there were two reasons: first, the Directive conferred on
individuals rights which were enforceable by them in courts of MS and which national courts
must protect – vertical direct effect, and second, a MS should not be able to rely on its own
default to implement a Directive within a stipulated time limit
Pubblico Ministero v Ratti (1979) – where MS is at fault (i.e. has not implemented a
Directive within a stipulated time limit), an individual can claim against the state the rights he
or she should have had if the Directive had been correctly implemented
Marshall (1986) – there is no horizontal direct effect for Directives established yet,
individuals cannot invoke Directive rights against another, because individuals are not to
blame for the MS’ non-implementation of the Directive
Faccini Dori (1994) – there were proposals for horizontal direct effect, but CJEU did not
follow Advocate’s General opinion and confirmed original rule; directives can only have
vertical direct effect

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Werner Mangold (2005) – the Court did not mention the question in a judgment in a case
between two individuals and confined itself to dealing with the incompatibility of the national
legislation with Community law where a general principle of Community law (non-
discrimination) was concerned – this at first sight looked like a purely horizontal case, but
CJEU resorted to other measures to give effect to Union law – it asserted that it was the
responsibility of the national court to guarantee the full effectiveness of the general principle
by setting aside the national legislation even before the date of expiry of the implementation
period
i. Does it perform a public service?
ii. Pursuant to a measure adopted by the state?
iii. Under the control of the state?
iv. Does it have special powers going beyond those of normal commercial
undertakings?
Signalson (1996) – CJEU has been willing to give incidental horizontal effect to Directives
in triangular situations; if, under domestic law, a rule serves as a basis for enabling
administrative regulations containing rules binding on the persons concerned to be adopted,
so that by itself it has no legal effect for individuals, the rule does not constitute a technical
regulation within the meaning of the Directive, but if it obliges undertakings to apply for prior
approval of their equipment, it must be classified as a technical regulation, even if the
administrative rules envisaged have not been adopted (other cases with same reasoning:
Panagis Pafitis (1996), Unilever Italia (2000))
INDIRECT EFFECT
HARMONIOUS INTERPRETATION
Von Colson (1984) – claim was originally vertical and failed to have direct effect because
of its insufficient precision X CJEU held that national court is under a duty to interpret existing
national law so far as possible, to achieve the result laid down by the Directive (courts are
required to take any appropriate measures to fulfil their obligations under the Treaties –
Article 4(3) TEU) – principle is, that a court is under a duty to interpret legislation “as far as
possible in accordance with the wording and the purpose of EU law, in order to ensure
the fulfilment of their obligations”
Marleasing (1990) – duty of harmonious interpretation applies in relation to all national
legislation, whether passed before or after the relevant Union legislation and whether
intended to implement it or not, and because it is a rule applicable to the courts, rather than
the parties, it applies irrespective of whether the action is vertical or horizontal
Kolpinghuis (1987) – application of the doctrine is subject to the general principles of law,
such as legal certainty and non retroactivity
Luciano Arcaro (1996), Berlusconi (2005) – the doctrine cannot be applied where it would
give rise to, or aggravate, criminal liability

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Centrosteel (2000), Coote (1998), Oceano Grupo (2000) – same immunity does not apply
to cases in relation to imposition of civil liabilities on individuals – duty to interpret national
legislation in the light of the wording and purpose of Community law applies even when this
would impose a civil liability on private parties
Pupino (2005) – CJEU: it would be difficult for EU to carry out its task effectively if the
principle of loyal cooperation…were not also binding in the area of police and judicial
cooperation in criminal matters, which is moreover entirely based on cooperation between
MS and the institutions
REMEDIES FOR EU LAW RIGHTS
Rewe Zentralfinanz (1976), Comet (1976) – CJEU has from the beginning stipulated that
the remedy obtained must comply with 2 principles:
1. principle of equivalence – the remedy for EU law right should be no less
favourable than those relating to similar domestic claims
2. principle of practical possibility – remedy should not be such as in practice to
make it virtually impossible or excessively difficult to obtain reparation
3. (Van Colson added a 3rd requirement – the remedy should be an effective deterrent)
REAL EFFECTIVENESS AND DETERRENCE

von Colson (1984) – case established the principle of indirect effect, and also, CJEU here
insisted that remedies provided by national law must be effective, adequate, should act as
a deterrent and guarantee real and effective protection
Factortame (1990) – requirement that national remedies for breach of Community law rights
should be adequate and effective was a new, universal requirement to be applied to all such
remedies
Marshall (No 2) (1993) – this is a case exemplifying an adequate and effective remedy -
remedy chosen was a compensation and if the Court applied the upper limit, it would not
provide an adequate remedy (it prevented her from receiving full compensation, since it did
not include interest)  thus it must have no ceiling and must include interest
Johnston (1986) – all persons had the right to obtain an effective remedy in a competent
court against measures which they considered to be contrary to the principle of equal
treatment as laid down in the Directive and the certificate could not be conclusive
APPLICATION OF NATIONAL PROCEDURAL RULES
Emmott (1991) – Ms Emmott tried to bring an action relying on a Directive, she was told that
due to national procedural rules, her claim was time barred and that the time has expired.
On reference whether it was contrary to Community law to rely on the time limits, CJEU held
that time limits do not start to run until after the proper transposition of the Directive, so she
was not, after all, out of time – time limits are reasonable in principle, but national government
cannot rely on its own default in implementing the Directive late
Steenhorst (1993) – national rule restricting the retroactive effect of a claim for benefits for
incapacity to work was in accordance with Community law – Court considered this only with
reference to the two principles (equivalence and practical possibility) and held that the
national rule in question satisfied those conditions

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PROCEDURAL PROTECTION AFTER THE LISBON TREATY
Article 19 TEU – Court is obliged to ensure that in the interpretation and application of the
Treaties the law is observed, MS are obliged to provide remedies sufficient to ensure
effective legal protection in the fields covered by Union law
Article 51 of the CHFR – CJEU is obliged to respect the rights, observe the principles
and promote the application of the Charter as part of its interpretative obligation
Article 47 – everybody is entitled to a right to an effective remedy and to a fair trial which
contains an entitlement to an effective remedy before a tribunal if Union law right is
infringed and a right to legal assistance for those who lack sufficient resources
DEB (2010) – here company DEB was refused legal aid on the ground that the conditions
laid down under German law for granting such aid to legal persons were not satisfied –
effectively, the rule prevented a legal person (a company) as opposed to a natural person,
from applying for legal aid as they were forced to make an advanced payment which natural
persons were not obliged to do  CJEU held that DEB could rely on Article 47 in order to
relieve themselves from making the advance payment and that it was for national court to
ascertain whether this provision in relation to legal aid constituted a denial of effective access
to justice (which if they did, they would affirm)

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STATE LIABILITY
Francovich (1991) – case concerned a total failure of Italian authorities to transpose a

Directive into Italian law – CJEU declared that the principle of state liability was inherent
in the scheme of the Treaty, basing these observations on inter alia on the principle of
effectiveness
Court laid down 3 conditions for state liability for complete failure to transpose a Directive:
1. the Directive must be intended to confer rights on individuals

2. the content of those rights must be ascertainable from the terms of the Directive
3. there must be a causal link between the loss suffered and the MS’s breach
Brasserie du Pecheur, Factortame (1996) - state liability can be imposed even where the
law does not have direct effect, state liability was first applied to Directives, now it can apply
to all forms of EU law (here it was the Treaty Articles) but the liability is not strict, there must
be a sufficiently serious breach for the state to be held liable in damages
APPLICATION OF STATE LIABILITY
Dillenkofer (1996) – CJEU held that the non-implementation of a Directive is always a
sufficiently serious breach, so only the Francovich conditions need to be fulfilled when
Directives are disputed
Ex parte British Telecommunications (1996) – incorrect transposition of a Directive was
held to be not sufficiently serious breach because the wording of the EC Directive was
unclear and several other MS had also unintentionally misinterpreted it
Haim (2000) – a public body separate (!) from state was liable under the principle of state
liability
Köbler (2003) – CJEU held for the first time that it was possible for state liability to apply
where the alleged infringement stemmed from a decision of a national court of last instance

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EU SUPREMACY
– implicitly in Article 10 EC, Article 249 EC and Declaration in Lisbon Treaty
Costa v ENEL (1964) – by entering into EC Treaty, MS had limited their sovereign rights
and that Community law could not be overridden by domestic legal provisions
Van Gend en Loos (1963) – A was allowed to rely on a clause in a Directive which UK had
not introduced into national law – state cannot rely on its own wrongdoing to frustrate rights
of individuals under directives – moreover, here it was stated implicitly that EU law is
supreme over UK law
Internationale Handelsgesellschaft (1970) – Community law takes precedence even over
a fundamental rule in the German national constitution
Simmenthal No 2 (1978) – Court held that national courts, even a low court of first instance,
have a duty to set aside provisions of national law which are incompatible with EC law –
there was no need to wait for the national law to be amended in line with national
constitutional procedures: the national rule had to be set aside immediately if it conflicted
with a directly applicable or directly effective Community provision
Larsy (2001) – the obligation to set aside conflicting national rules was held to apply also to
administrative agency dealing with a national social insurance scheme
UNITED KINGDOM
Pickstone (1987) –tension between the UK doctrine of Parliamentary sovereignty and the
separation of powers on one hand, and the Union doctrine of supremacy on the other – HOL
had to use the purposive approach (instead of UK literal) and stated that Miss Pickstone was
entitled to claim on the basis of work of equal value
Duke (1988) – 1972 Act did not allow UK court to distort the meaning of a UK statute in order
to enforce a Community Directive which does not have direct effect
i. Does it perform a public service?
ii. Pursuant to a measure adopted by the state?
iii. Under the control of the state?
iv. Does it have special powers going beyond of commercial undertakings?
Lister (1989) – UK court again must have used purposive interpretation in order to construe
statutes as far as possible in conformity with European law
Webb (1992) – case concerned a wrongful dismissal for pregnancy, Marleasing principle
applies whether the domestic legislation came after or preceded the Directive, Lord Keith:
it is for UK court to construe domestic legislation in any field covered by a Community
Directive so as to accord with the interpretation of the Directive as laid down by ECJ if that
can be done without distorting the meaning of the domestic legislation

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GERMANY
Internationale Handelsgesellschaft (1970) – Community law takes precedence even over
a fundamental rule in the German national constitution, the ruling was not accepted by the
German Federal Constitutional Court, however it noted that the Community did not have a
codified catalogue of human rights and held that Community measures would, therefore, be
subject to the fundamental human rights contained in the German constitution
Wünsche Handelsgesellschaft (1987) – however, the German Federal Constitutional
Court acknowledged that Community law now had its own equivalent standard of human
rights protection
Brunner (1994) – Federal Constitutional Court again re-affirmed German constitutional
sovereignty and its right to review scope of Community competence, in its judgment after
various constitutional complaints had been brought before it by private citizens as well by a
political party in respect of the ratification of the Lisbon Treaty – FCC held the Treaty was in
accordance with the German Basic law and simply objected to the domestic law which
implemented the Treaty and annulled the law
FRANCE
o the Cour de cassation (highest civil court) accepted the primary or directly effective
EC law on basis of the French Constitution
o but the Conseil d’Etat (supreme administrative court) showed reluctance to accept
the primacy of Union law and in particular has refused to accept that Directives can
have direct effect
-
o French courts therefore accept the primacy of directly effective Union law, but their
reasoning is frequently based on French Constitution, rather than on the EC’s doctrine
of supremacy – similar view to that expressed the UK and Germany that it is the
national constitution which is at the head of the legal order and that Union law
supremacy exists only in so far as it is provided for under national law
Cohn-Bendit (1980) – it was held that only a French implementing measure can give effect
to a Directive according to Article 288 TFEU
Boisdet (1991) – it was held that an EC Regulation took precedence over subsequent
French regulations which conflicted with it, on the basis of the Court’s case law
Rothmands and Arizona Tobacco (1993) – it was held that damages should be awarded
for loss caused by a ministerial order which conflicted with an EC Directive
ITALY
Frontini (1974) - Italian Constitutional Court accepted supremacy of Union law (Article 11
of the Italian Constitution), however it reserved the right to ensure that the fundamental
principles of the Italian Constitution were not infringed by Union law; it stated that if it found
that a Community measure infringed those fundamental rights, it would declare it
inapplicable – thereby giving precedence to the Italian Constitution

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PROPORTIONALITY
- different states might put different emphasis on certain rights
- this is fine, but any departure from a fundamental right must be proportionate to the goal it
is trying to achieve
Omega (2004) - banning paintball games might prevent violence but also restricts freedom
of establishment – but to a proportionate degree - MS are given a discretion to legislate
according to own unique priorities but they must act with regards to EU law
Carpenter (2002) – removal of a person from a country where close members of his family
are living may amount to an infringement of the right to respect for a family life (A8 ECHR)
and such infringement will be actionable unless it is in accordance with law, motivated by
one or more of the legitimate aims under that paragraph and necessary in a democratic
society, i.e. justified by a pressing social need and in particular proportionate to the
legitimate aim pursued
LEGAL CERTAINTY
- they were designed to make sure people know what the law says and are able to
follow it:
non-retroactivity: new law cannot apply to facts which occurred before law was made
- R v Kirk (1984) – penal provisions may not have retroactive effect
legitimate expectation: where party legitimately believes the law should operate a
certain way, it should do so, unless there are some serious reasons for departure -
Topfer (1978) – breach of the principle of protection of legitimate expectation is
admissible since it forms part of the Community legal order
EQUALITY
- all persons should be treated equally before the law
- general: those in similar situations should not be treated differently unless there is a
strong objective reason for doing so
- specific: particular provisions guaranteeing equality between nationalities (Article
18), gender (Article 157), age, producers, consumers across states (Article 40
TFEU)
Baumbast (2002) – Article 12 on the freedom of movement of workers within the Community
must be interpreted as entitling the parent who is the primary carer of those children,
irrespective of their nationality, to reside with them in order to facilitate the exercise of that
right
P v S (1996) – equal treatment for men and women as regards access to employment,
vocational training and promotion, and working condition  dismissal of a transsexual for
a reason arising from the gender reassignment of the person concerned constitutes a breach
of a fundamental right

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FREE MOVEMENT OF GOODS

ARTICLE 28 and 30 custom duties on import and export
ARTICLE 28 and 30 charges having equivalent effect to custom duties
ARTICLE 34 and 35 quantitative restrictions on imports and exports
ARTICLE 37 state monopolies of a commercial character
ARTICLE 110 discriminatory internal taxation on imported goods
Art Treasures (1968) – free movement provisions apply to any product which can be valued
in money and which forms the basis of a commercial transaction
Jersey PMO (2005) – this case is example for purely internal situation actually had to
engage EU law despite there being no cross-border element; CJEU held it was a breach of
A28 and A35 in respect of the requirement imposed on exporters of Jersey potatoes from
Channel Islands to the UK
Van Gend en Loos (1963) – ECJ held that A30 could be relied on by individuals before the
national court (it was the first Article relating to the free movement of goods to be found dir.
ef.)
ARTICLE 28 and 30 – CUSTOM DUTIES AND EQUIVALENT EFFECT CHARGES
Statistical Levy (1969) – case involved an Italian levy on imports and exports across its
borders, the levy was a very small sum and it was used to pay for the gathering and
publication of statistics – ECJ stated that it is the effect and not purpose of levy that matters,
and since fees and charges are likely to put imported foods at a disadvantage compared
with domestically produced foods, it was a charge having equivalent effect to a custom duty
Diamantarbeiders (1973) – MS may not introduce in a unilateral manner new charges on
goods imported directly from third countries or raise the level of those existing at the time –
common customs tariff duty can be levied on such goods but no other charged can be added
by the MS
EXCEPTIONS
PAYMENT FOR A SERVICE – there must be a specific benefit individually conferred on
import or export
Statistical Levy (1969) – benefit in general interest of all E / to public at large, exception
won’t apply
W Cadsky (1975), Bresciani (1976) – exception excludes inspections for public health
reasons, or to ensure equality
Commission v Belgium (1983) – a charge for a service was held to be lawful where the
benefit paid is for a service actually rendered to the I and cost charged for service is based
on actual cost

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CHARGES FOR INSPECTIONS MANDATORY UNDER EU LAW

Bauhuis (1997) – fees for veterinary and public health inspections were demanded as part
of general system of domestic charges, were not held charges having equivalent effect to
custom duty
Commission of EC v Germany (1988) – fees charged on the importation and transit of
live animals from one MS to another to cover the costs of veterinary inspections carried out
under provisions of a Directive, did not constitute a charge having an effect equivalent to a
customs duty
DOMESTIC TAXES APPLY TO IMPORTED GOODS
Cooperativa Cofrutta (1987) – example of a case where taxes may apply where there is
no equivalent domestic product: hardly any bananas were grown in Italy, but ECJ still held
that Italian consumption tax on imported bananas was part of the internal tax system – this
was provided that the internal tax related to a general system of internal dues applied
systematically to categories of products in accordance with objective criteria irrespective of
the origin of the product
ARTICLE 110 – DISCRIMINATORY TAXATION
Lutticke (1966) – Article 110 has direct effect and creates individual rights to be protected
at court
Cooperativa Cofrutta – internal tax relates to a general system of internal dues applied
systematically to categories of products in accordance with objective criteria irrespective of
the origin of the product
Commission v Ireland (1980) – sometimes the method of collecting taxes can in itself result
in discrimination: importers were required to pay the tax immediately, whereas domestic
producers had several weeks to pay (period of grace) – this was discriminatory & constituted
a breach of A110
Commission v UK (Wine and Beer) (1980) – ECJ ruled that wine was not similar to beer,
since different raw materials and production methods were used and the products had
different characteristics  if not similar for purposes of A110(1) , is it competing for the
purpose of A110(2)? Competing products fulfil the same consumer need, British were not
great wine drinkers and tax on wine was higher than on beer – light wines at the cheaper
end of the market were held to be competing with beer
Commission v France (Tobacco) (2002) – higher tax was imposed on light tobacco
cigarettes than on dark ones – ECJ decided that light and dark tobacco products were similar
(they were made from the same basic raw materials, had similar properties and fulfilled the
same consumer need)
Haahr Petroleum (1997) – national rules required Danish ports to impose a 40% surcharge
on the basic charge paid for goods unloaded from ships – the tax was imposed only on
goods loaded on ships arriving from outside Denmark and thus constitute direct
discrimination on the basis of origin and moreover, direct discrimination can never be
justified

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Humblot (1987) – in indirect discrimination, it is necessary to prove that there is a

protective effect, here a system of progressive taxation for no objective reason operated to
the disadvantage of cars imported from other MS – it had a discriminatory or protective effect
prohibited by the A110
Danske Bilimportorer (2003) – case concerned a very high registration tax on new cars
sold in Denmark which were all imported, here there was not a breach of A110 since no
Danish products were product
Commission v Greece (1990) – system of taxation of products in which the amount of the
taxes increases progressively according to an objective criterion is not prohibited by
Community law and cannot be regarded as discriminatory solely because only imported
products, in particular those from other MS, come within the most heavily taxed category
Chemical Farmaceutici (1981) – by reason of the taxation of synthetic alcohol, it has been
impossible to develop profitable production of that type of alcohol on national territory, the
application of such tax arrangements was not considered to be constituting indirect
protection -indirect discrimination can be justified and here it was justified on grounds of
industrial policy justification
Commission v France (1987) - indirect discrimination can be justified and here it was
justified on grounds of regional policy justification to support poor regions of France
BREACH OF A110
Bobie (1976) – if the breach is of A110(1) – similar products: MS must ensure strict
equivalence in tax applied or, if there is a sliding scale, that imports are placed at the lowest
point on the scale
Commission v Belgium (1987) – if the breach is of A110(2) – competing products: it is

not necessary that rates of tax be identical, MS must ensure that rates are such that there
is no protective effect for the competing domestic product
Kupferberg (1982) – even where provisions on non-discriminatory taxation have been

included in the relevant Free Trade or Association Agreement in relation to third country
goods, Court has given a more limited interpretation to them
Texaco (1997) – where goods are imported from third country with which EU has no such
agreement, A110 does not apply – A110 applies only to products form the MS and where
appropriate, to goods originating in non-MS which are in free circulation in the MS – it follows
that provisions are not applicable to products imported directly from non-member countries
EXPORTS
Nygard (2002) – this case concerned a levy on pigs slaughtered for domestic market and
for export – the levy was more advantageous for those for sale on the domestic market than
for those intended for export – this in turn breached A110; A110 was held that it could apply
if goods to be sold on the domestic market had to pay less tax than those for export, as this
might deter exports

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ARTICLE 34-36 – QUANTITATIVE RESTRICTIONS

& MEASURES HAVING EQUIVALENT EFFECT
- quantitative restriction (QR) is a quota or limit on the number of goods which can be
imported from one country to another
Promalvin (1992) – Spanish law set quotas on the bulk export of its wine while placing no
restrictions on domestic sales, export of 3,000 hectolitres of wine was not permitted and the
law was found to be a quantitative restriction on exports which was illegal A35
Buy Irish (1982) – Irish Goods Council was found to have state funding and direct state
involvement in the appointment of its Management Committee – Council was a public
authority capable of issuing relevant state measures – CJEU held its activities were subject
to A34
Apple and Pear (1983) – A34 only has vertical effect against actions of the state
Commission v France (1997) – CJEU held that inaction by state in face of organised and
persistent disruption by French activists could also breach A34 – over 10 years, French didn’t
prevent activists from obstructing imports to France of cheaper fruit and vegetables from
Spain and Portugal
Dassonville (1974) – MEQR = all trading rules enacted by MS which are capable of
hindering, actually or potentially, directly or indirectly, intra-Community trade – this definition
of MEQR focuses on hindrance rather than on discrimination per se
DEROGATIONS UNDER ARTICLE 36
Article 36 provides 6 grounds on which measures can be justified as long as they are
proportionate:
PUBLIC MORALITY -
Conegate (1986) – A36 must not be used to support arbitrary discrimination or
disguised restrictions – UK ban on sex dolls from Denmark was disproportionate since,
within UK, sale of such dolls was not banned, although there were certain restrictions
on how and where they could be sold
PUBLIC POLICY
-
Commission v Italy (1982) – it cannot be used for purely economic reasons
International Trader’s Ferry (1999) – animal rights protesters were blocking a port,
trying to prevent the lawful export of veal calves to France, ITF sued the Chief
Constable for not protecting the lorries for more than 2 days a week – their actions
were justified on public policy justification, namely that state’s responsibility to
ensure the free movement of goods had to be balanced with right to policing and the
right to a peaceful protest
PUBLIC SECURITY
Campus Oil (1984) – CJEU held that maintenance of regular oil supplies which were
fundamental to the existence of the state, was a legitimate aspect of public security

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PROTECTION OF HEALTH AND LIFE OF HUMANS, ANIMALS AND PLANTS

Re Imports of Poultry Meat (1982) – CJEU will consider whether the risk to health is
genuine, or a disguised trade restriction
UHT Milk (1983) – this concerned restrictions on the import of UHT milk from other
MS, UK
imposed requirement of milk only from approved dairies and distributors – this limited
the UK market to other EU milk producers and distributors - UK claimed that milk was
unsafe and this was found to be an unnecessary requirement
Additives in Beer (1987) – GER prohibited a large number of additives in beer which
were permitted in other MS, CJEU was not swayed by the argument that they posed
an increased danger to GER consumers, since they were already consuming so much
beer in GER!
Sandoz (2003) – in so far as there are uncertainties at the present state of scientific
research, it is for the MS, in absence of harmonisation, to decide what degree of
protection of the health and life of humans they intend to assure, having regard
however for the requirements of the free movement of goods within the Community
Commission v Denmark (2003) – CJEU confirmed that MS can adopt their own
precautionary measures in situations where the precise risks to health are uncertain,
but said that any such precautions must be necessary and proportionate
Commission v Netherlands (2004) – proper application of precautionary principle:

1. the identification of the potentially negative consequences for health
2. a comprehensive assessment of the risk for health based on the most reliable
scientific data available and the most recent results of international research
3. where data on the existence or extent of the alleged risk is insufficient, inconclusive
or imprecise, but the likelihood of real harm to public health persists should the risk
materialise, the precautionary principle justifies the adoption of restrictive measures
 e.g. in Commission v Italy (Caffeine) (2003) this burden was not discharged

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INDISTINCLY APPLICABLE MEASURES
Cassis de Dijon – such measures apply to both domestic and imported goods equally
in law, in fact, they impose an extra burden on imported goods
- here it was the German requirement that fruit liqueurs have an alcohol strength of
25%, French blackcurrant liqueur, Cassis, had a strength of 15-20% and therefore
could not be sold in Germany
- the German rule, although apparently non-discriminatory, in fact made it
impossible for French manufacturers to export Cassis to Germany, thus making it
indistinctly applicable and in breach of A34
- imported goods can be subject to the national rules only if the following is fulfilled:
1. the rule in Q applies equally to domestic products

2. the rule is necessary to protect an essential public interest (mandatory
requirement)
3. it is proportionate (it is not more restrictive than necessary to protect the
interest)
MANDATORY REQUIREMENTS DOCTRINE – additional list of grounds on which MS can

justify imposing national rules on imported goods, but unlike A36, mandatory requirements
can only be used to justify indistinctly applicable measures
CONSUMER PROTECTION
Walter Rau (1982) – Belgian rules required margarine sold in Belgium to be packaged in
cube-shaped containers, packaging rule was to prevent confusion with butter – this rule was
held not to be imposed on imported margarine because of its disproportionate character –
clear labelling would be enough to prevent confusion and thus protect the consumer
X successful cases: Oosthoek (1982) – the use of free gifts to sell encyclopaedias
Buet (1989) – doorstep-selling of educational materials
PUBLIC HEALTH
APESA (1991) – CJEU has ruled that as A36 provides for derogation on this ground,
the Treaty Article should be used in preference to mandatory requirements
PROTECTION OF THE ENVIRONMENT

Commission v Austria (2005) – Austria put in place a ban on lorries over 7.5 tonnes
transporting certain goods using the A12 highway for a distance of 46 km  the road
is the main transit route between the south of Germany and Italy  CJEU accepted
this was justified under the mandatory requirement of protection of the environment
but held that was not proportionate

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CULTURE
Cinetheque (1985) – A30 does not apply to national legislation regulating distribution
of cinematographic works by imposing an interval between one mode of distributing
such works and another by prohibiting their simultaneous exploitation in cinemas and
in video-cassette form for a limited period, provided that the prohibition applies to all
video-cassettes (whether domestic or imported) and barriers do not exceed what is
necessary
PROTECTION OF NATIONAL / REGIONAL SOCIO-CULTURAL CHARACTERISTICS
Torfaen (1989)
PLURALITY OF THE PRESS
Familiapress (1997) – where a MS relies on overriding requirements, such as
maintaining press diversity, under A30 in order to justify rules which are likely to
obstruct the exercise of free movement of goods, such justification must also be
interpreted in the light of the general principles of law and in particular fundamental
rights
PROTECTION OF FUNDAMENTAL RIGHTS
Schmidberger (2003) – CJEU held that fundamental right of assembly was in issue
and thus freedom of movement rules were ousted – freedom of assembly was in
principle capable of justifying a restriction on free movement, and that was answered
by reference to Q whether the restriction was justifiable and proportionate
DISCRIMINATORY RULES INDISTINCTLY APPLICABLE RULES
- state measures which apply only to - rules which apply equally to both
imported goods and not to the imported and domestic goods in law
equivalent domestically-produced but which in fact impose an extra
goods burden on imports because they
- such rules are always illegal and then have to comply with two sets of
prohibited under A34 and A35 rules: those of their home state and
unless justified under A36 those of the importing state
- such rules are illegal and prohibited
under A34 unless justified under
A36 or Cassis de Dijon mandatory
requirement
Commission v Ireland (Souvenirs) (1981) – Irish sought to justify rule for imported
souvenirs carry a label marked “foreign” – there was no labelling requirement for domestic
products  this requirement was discriminatory and A36 does not include consumer
protection (for discriminatory rules only A36 can be used and not MR)
Jersey PMO (2005) – the court declared incompatible with A35 a series of rules imposed
by Jersey on the export of potatoes to the UK, A35 encompasses only discriminatory
measures!

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SCOPE OF A34
– definition of MEQR in Dassonville, combined with extension in Cassis to cover indistinctly
applicable measures, generated a huge number of challenges to national rules based on
A34 – some of these rules were not intended to restrict imports and did not in any way make
things more difficult for the importer  nonetheless they fell within the scope of A34 and
required a justification under A36 or Cassis mandatory requirement
Torfaen (1989) – justification of protection of national or regional socio cultural
characteristics was applied to opening retailers’ premises on Sunday where the restrictive
effects on Community trade resulted therefrom in too intrinsic rules of that kind
Stoke-on-Trent CC (1992) – A30 is to be interpreted as meaning that the prohibition which
it lays down does not apply to national legislation prohibiting retailers opening their premises
on Sunday, such regulation which is not intended to regulate the flow of goods and affects
the sale of both domestic and imported products, pursues an aim which is justified under
Community law, it reflects certain choices relating to particular national or regional socio-
cultural characteristics and it is for MS to choose compliance proportionally
X Joined Cases Criminal Proceeding against Keck and Mithouard (1993)
- Court said that limit should be placed on types of measures encompassed by A34
- Court declared that contrary to what has previously been decided, A34 would not
apply to certain selling arrangements, provided that they apply to all relevant traders
in the national territory and affect in the same way, in law and in fact, marketing of
domestic products and those from other MS - judgment created two categories of
trading rules:
o product requirements – affect the goods themselves and are still governed
by the existing rules on discriminatory and dual burden measures
o selling requirements – do not require any change to the product itself but only
restrict the way it is marketed – as such the latter fall outside the scope of A34
and are legal (they do not have to be justified or proportionate under EU law)
Hünermund (1993) – rules on advertising of products in pharmacies
- measures adopted by a professional association, in the pharmacy sector constitute,
if they are capable of affecting trade between MS, measures within the meaning of
A30 in so far as
o it is a public body with legal personality and regulated by the State, membership
of which is compulsory for all pharmacists practising within area of jurisdiction
o the association lays down rules of professional conduct applicable to all and
monitors compliance
o professional conduct committees are a part of the scheme and may input
disciplinary measures such as fines and disqualifying
Punto Casa (1994) – opening hours
Commission v Greece (1995) – restriction on where baby milk powder could be sold, here
it did not affect the sale of products in other MS any differently

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Clinique (1994) – German law prohibited the use of the name Clinique for cosmetics
because consumer might be confused and think that the product has medical properties,
CJEU held this rule to be disproportionate to objective of consumer protection and health
Mars (1995) – promotion printed on wrapper of Mars bar was part of the product itself
Familiapress (1997) – large cash prizes for competitions in magazines, Familiapress
brought action against a German publisher of weekly magazines which were being sold in
Austria and which offered large cash prizes for crossword competitions – this was held not
to be a selling arrangement under Keck because the law bears on the actual content of the
products, the competitions in Q form an integral part of the magazine since it requires traders
to alter contents of the periodicals (it is MEQR and falls within the scope of A34)
Leclerc-Siplec – AG Jacobs identified potential problems with Keck pointing out that
domestic products are probably already known to consumers, whereas products from other
MS are more dependent on advertising to penetrate new markets
Schutzverband (2000) – under Austrian law, traders such as bakers, butchers and grocers
were only permitted to sell on rounds from locality to locality or door-to-door those goods
which they also sold from a permanent establishment in the area, applicant brought action
against defendants to restrain them from offering for sale on round groceries which it did not
sell in permanent establishment  CJEU held that law related to selling arrangements for
certain goods but it did not affect in the same manner marketing of domestic products and
those imported, i.e. rule did not apply equally in law and fell within A34 despite being a
selling arrangement!
GIP (2001) – consumer protection which prevented GIP from placing advertisements for
alcoholic beverages in magazines, Swedish law had a total ban on this kind of advertisement
prohibiting them in radio, TV or magazines – ECJ rejected that this was a selling
arrangement and thus outside A34, national provisions prohibiting certain selling
arrangements must not impede access to the market for products from another MS or must
not impede access more than they impede the access for domestic goods which this rule
did – it is thus prohibited by A34, despite being a selling arrangement
Commission v Italy (2009) – Italy prohibits mopeds, motorcycles, tricycles and quadricycles
form towing a trailer, ECJ examined whether Italy was in breach of Treaty with regards to
trailers which were specifically designed to be towed by motorcycles and were legally
produced and marketed in MS other than Italy  rule was a MEQR and prohibited by A34
Mickelsson (2009) – Swedish restrictions on the use of jet skis on inland waters was
challenged to be an obstacle to free movement of goods, CJEU relied on Cassis and held
that even if the national regulation at issue doesn't have the aim or effect of treating foods
coming from other MS less favourably, the restriction which they impose on the use of a
product in the territory of a MS may have a considerable influence on the behaviour of
consumers and may affect the access of that product to the market of that MS – such
restrictions won’t be saved under Keck
 AG Kokott suggested extending of Keck to use arrangements and to embrace what
could be concisely termed as an “access to market” test, but this was rejected

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SERVICES AND ESTABLISHMENT

- key provisions are for freedom of service A.49 and establishment A.56
- both the right of establishment and the freedom to provide services rest on the
prohibition of discrimination
Gebhard (1995) – establishment is pursued on a stable and continuous basis, services are
temporary in nature (classification depends on duration, regularity, periodicity and continuity
of the provision of the services
Cassis de Dijon – on the other hand, host state’s rules should not be applied to the same
extent to a person providing services on a temporary basis, since they already have to
comply with rules in their home state and this would amount to a dual burden
Article 56 basic rule abolishing restrictions on freedom to provide
services
Article 57 definition of services
Article 58 specific provisions for the transport sector
Article 59 power to issue Directives
Article 61 non-discrimination transitional provision
Article 62 derogations on grounds of public policy, security and health
ARTICLE 56
Van Bindbergen (1974) – A.56 has direct effect
Webb (1981) – Dutch rules about employment duplicated the protection provided by the
UK, it was not necessary to require a Dutch licence as well
Dennemeyer (1991) – UK company provided services throughout the EU, it operated
lawfully in the UK but did not meet the requirements of German law, the requirements were
disproportionate
 freedom to provide services may be limited only by national rules which are:
1. non-discriminatory
2. justified by imperative reasons relating to the public interest
3. necessary
4. proportionate
Arblade (1999) – requiring labour and social documents in a host Member State, where the
undertaking is already subject to comparable obligations in their home State would be a dual
burden and if it is a temporary carrying out MS are precluded from doing so
Omega (2004) – temporary nature of the activities in Q are to be determined in the light of
its duration, regularity, periodicity and continuity
FREEDOM TO PROVIDE A SERVICE
Van Bindbergen (1974) – A.56 has direct effect
Ciola (1999) – restriction by Austrian law on the number of moorings on Lake Constance
which could be held by boat-owners resident in other MS was in breach of A.56 since it
interfered with attempts to provide a service

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FREEDOM TO RECEIVE A SERVICE

Luisi and Carbone (1984) – Italians travelling to another MS for medical treatment were
protected by A.56
Cowan (1989) – French law provided compensation for injuries to French nationals and
residents who were victims of crime but this rule was not provided for non-residents and
when Cowan was robbed and injured, he was protected by A.56
Gravier (1985) – access and participation in courses of instruction and apprenticeship, in
particular vocational training, are connected with Community law (conditions of access to
vocational training fall within the scope of the Treaty
HEALTH CARE
Kohll (1998) – Kohll obtained orthodontic treatment for his daughter in Germany and then
sought reimbursement from the Luxembourg social security system but they refused since
they had a requirement for prior authorisation as a prerequisite for reimbursement, but this
was contrary to A.56
Smits and Peerbooms (2001) – requirement for prior authorisation to receive medical
treatment in another MS could be subject to the following conditions:
1. treatment is normal in the international professional circles concerned
2. the medical treatment is necessary
Inizan (2003) – prior authorisation could be required for treatment outside France, but could
only be refused if the same or equally effective treatment for the patient could be obtained
in France without delay
Yvonne Watts (2006) – NHS was obliged to refund the costs of hospital treatment obtained
in another MS if the patient was faced with an undue delay in UK; where delay in offering
treatment in the home state exceeds a medically acceptable time period, the competent
authorities may not refuse authorisation because of waiting lists…etc.
Commission v France (2010) – national rule required prior authorisation in order for
competent institution to be responsible for payment for treatment planned in another MS and
involving the use of major medical equipment outside a hospital setting – due to the dangers
to the organisation of public health policy and the financial balance of the social security
system, such requirement was a justified restriction
Elchinov (2010) – law which is interpreted as excluding reimbursement in all cases in
relation to hospital treatment in another MS without prior authorisation was in breach
SERVICES THAT MOVE, WHERE THE PROVIDER AND RECIPIENT DO NOT

Alpine Investments (1995) – Netherlands prohibited cold calling (uninvited telephone
sales) for the sale of commodities on the futures market to non-professional investors, Dutch
rule was held to be justified and proportionate on the grounds of protecting the reputation of
the Dutch financial sector

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ARTICLE 57 TEU = ARTICLE 60 TFEU

services = they are temporary in nature and they are normally provided for remuneration
Gebhard (1995) – temporary nature of the activities is to be determined in the light of its
duration, regularity, periodicity and continuity – provider of services may equip himself with
some form of infrastructure which is necessary for the purposes of performing the services
in question (office, chambers…)
Humbel (1988) – a state school operating within national educational system is not to be
held as providing services (opposite would be the situation of private schools)
Deliège (2000) – sporting activities and, in particular, a high-ranking athlete’s participation
in an international competition are capable of involving the provision of a number of separate,
but closely related, services which may fall within the scope A.59 and 60
Grogan (1991) – medical termination of pregnancy, performed in accordance with law of the
State in which it is carried out, constitutes a service within the meaning of A.60
ARTICLE 51 TEU
- A.51 allows MS to exclude activities ‘connected even occasionally with the exercise
of official authority’
- A.52 provides for derogations: public policy, security and health
- national rule restricting the freedom to provide services must be compatible with the
requirements of A.56, to do so, it must satisfy a 4-part test:
1. the rule must be non-discriminatory

2. the rule must be justified by imperative requirements in the general interest
3. the rule must be suitable for the attainment of the objectives it pursues
4. the rule must not go beyond what is necessary to attain its objectives
PUBLIC INTEREST GROUNDS

Rush Portuguesa (1990) – right of a Portuguese company to provide construction services
in France under A.56 included the right for it to use its own employees to provide services,
Court dismissed France’s action that this would threaten the stability of the labour market in
France as the activity was only temporary
Webb (1981) – Dutch rules about employment duplicated the protection provided by the
UK, it was not necessary to require a Dutch licence as well
Arblade and Leloup (1999) – 2 French companies providing services in Belgium were
prosecuted for their failure to comply with Belgian social law governing employment,
requirements to issue each worker with an individual record and paperwork formalities in
Belgium were held to be prohibited by A.56 since such paperwork was already maintained
in the home state
Laval un Partneri (2007) – the Court ruled that since the Latvian company protected its
employees to the standards to the standards required by EU law, an attempt to force it to
comply with further standards in Sweden breached its right under A.56  in deciding this,
the Court held that A.56 had horizontal effect !

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public interest grounds:

Wesemael (1979) – professional rules intended to protect the recipient of services
Coditel (1980) – protection of intellectual property
Commission v Italy (1991) – tourist guides – consumer protection
Commission v Germany (1986) – insurance policies – consumer protection
Commission v Italy (1991) – conservation of national historic and artistic heritage
Commission v France (1991) – dissemination of knowledge of the artistic and cultural
heritage of a country
Gouda (1991) – cultural policy
De Coster (2001) – cable and satellite services were taxed differently, because cable
services were not subject to the same taxation, the tax on satellite services interfered with
the provision of services – Belgian justified the rule on grounds that it was necessary to
control the uncontrolled proliferation of satellite dishes and preserve the quality of the
environment
Sky Italia (2013) – protection of consumers against abuses of advertising constituted an
overriding reason relating to the general interest which may justify such a restriction, it was
subject to the principle of proportionality  thus Italian measure on television advertising
laying down hourly limits for advertising for pay-TV broadcasters and not for free-to-air
broadcasters was found to be compatible
PROTECTION OF HUMAN RIGHTS

Omega (2004) – in Germany laser-games are regarded as trivialising violence and infringing
the fundamental right of human dignity guaranteed in the German Constitution – Omega
argued that the German measure prohibiting them from introducing such a game in its
laserdrome was in breach of A.56
ILLEGAL SERVICES
Grogan (1991) – Irish student organisation illegally distributed leaflets in Ireland about
abortion available in UK, the Court avoided having to decide whether a legitimate interest
was being protected by holding that as students were not themselves connected with the
service providers, they were not covered by A.56
Schindler and Schindler (1994) – UK rules against large-scale lotteries, which prevented
the promotion in the UK of a German lottery, were justified “in light of the specific social and
cultural features of each MS, to maintain order in society”
Anomar (2003) – Portuguese rules restricting casinos fell within the margin of discretion
enjoyed by MS on grounds of social policy and the prevention of fraud

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Lindman (2003) – Finnish rules that considered winnings from lotteries held in other MS as
taxable income while holding that winnings from lotteries held in Finland were not taxable,
were contrary to A.56
Laara (1999) – national law which grants to a single public body exclusive rights to operate
slot machines in the national territory, and which thus directly or indirectly prevents operators
in other MS from themselves making slot machines available to public – constitutes an
impediment to freedom to provide services, even if it applies without distinction
Gambelli (2003) – national legislation prohibiting collecting, taking, booking and forwarding
offers of bets without a licence or authorisation from the MS concerned constitutes a
restriction on freedom of establishment
The Sporting Exchange – because of the lack of direct contact between consumer and
operator, online hazard games involve a different and more substantial risks of fraud by
operators against consumers compared with the traditional markets for such games – here
it was justified by the objective of combating fraud and crime
Ladbrokers (2010) – Netherlands prohibited organisation of gambling unless organiser has
been licensed by the state – it was legitimate for a MS to restrict the ability of operators to
organise gambling and that it was permissible for the state to issue exclusive rights to do so
HIT and HIT (2012) – CJEU held a national measure prohibiting advertising of foreign
casinos, although restricting the freedom to provide services, was justified by the objective
of consumer protection
Josemans (2010) –prohibition of illegal drugs in EU and particular status of cannabis in the
Netherlands, where use is tolerated rather than actually legal, meant that coffee-shop could
not rely on free movement regarding the marketing of cannabis
SERVICES DIRECTIVE – Directive 2006/123

- Directive aimed at facilitated the free movement of services by removing legal and
administrative barriers to trade in the services sector
- provision of services cannot be restricted unless the measure is non-discriminatory,
objectively justified and proportionate
- according to the communication, the Commission will also conduct:
o an assessment of the issue of reserves of activity
o an assessment to better understand the manner in which restrictions on
capital ownership and legal form affect certain services sectors
o an examination of the difficulties for cross-border service providers
resulting from insurance requirements with a view to finding practical solutions

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FREEDOM OF ESTABLISHMENT – ARTICLE 49 TFEU

FREEDOM OF ESTABLISHMENT AND PEOPLE
Factortame (1990) – UK’s attempt to impose residence and nationality requirements for
those operating fishing boats was held to be unlawful
Fearon (1984) – residence requirements must apply both to nationals and non-nationals of
that MS and powers of compulsory acquisition are not exercised in a discriminatory manner
Klopp (1984) – measures which are more difficult for non-nationals than nationals to comply
with but nevertheless apply to both are indirectly discriminatory and are also encompassed
within the Article 49
Kraus (1993) – administrative procedure which the person must follow to verify his
postgraduate academic title must be easily accessible and not call for the payment of
excessive administrative fees, the administrative decisions must be subject to judicial review
and person must be able to ascertain reasons for the decision
Gebhard - Italian rules prohibiting the establishment of chambers by non-national
lawyers in the host state could only be imposed on non-nationals if four conditions were
met:
➢ the rules were applied in a non-discriminatory manner
➢ they were justified by an overriding general interest
➢ they were a suitable means of achieving the objective
➢ they did not go beyond what was necessary
FREEDOM OF ESTABLISHMENT AND COMPANIES

- right of establishment = right of a natural person or a company to settle in a MS and
to pursue an economic activity there (A.49)
- companies and firms = those constituted under civil or commercial law (A.54)
- encompassing cooperative societies and other legal persons but excludes non-profit
organisation
a. primary establishment = permanent establishment in one MS

b. secondary establishment = establishment in two or more MS
PRIMARY ESTABLISHMENT
Daily Mail (1988) – Daily Mail claimed that the UK statutory requirement that companies
transferring their central management abroad must obtain Treasury permission first was an
obstacle to the freedom of establishment X Court held that A.49 conferred no directly
effective right to transfer a company’s principal place of business in another MS without
restrictions
VALE Építési (2012) – in the absence of a uniform definition of companies in EU law, the
host MS may determine the national law applicable to such operations and apply the
provisions of its national law that govern the incorporation and functioning of companies

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SECONDARY ESTABLISHMENT
Avocats au Barreau (1984) – French rule restricted French lawyers to membership in only
one local Bar, nevertheless there was the possibility for a foreign lawyer to have an office in
another country – differences in national company law mean that it may be easier to
establish a business in another MS
Centros Ltd (1999) – Danish company established a company in the UK to avoid the
minimum share capital requirements of its home MS but then continues to carry out its
business activities in Denmark through a branch set up there – it was not abuse for A.49 for
nationals of one MS to choose to form a company in another MS whose rules on company
law were less restrictive and then to set up secondary establishments in other MS and carry
out most, or even all of its business in those other MS
Kamer (2003) – Dutch company established itself in UK to avoid more stringent corporation
requirements of Dutch law, when it then sought to set up a secondary establishment in the
NED it was subject to certain requirements under Dutch law – Court held those requirements
were disproportionate
TAXATION OF COMPANIES AND ARTICLE 48

Marks & Spencer (2005) – according to UK tax law it is possible for a parent company and
its subsidiaries which are all resident in UK to deduct losses incurred by one member of the
group against the taxable profits of other companies of the group  it was held that UK tax
law was in breach of the freedom of establishment
Cadbury Schweppes (2006) – Court held it was not an abuse of the freedom of
establishment for a company established in a MS to set up and capitalise companies in
another MS solely to take advantage of a more favourable tax regime
DEROGATIONS FORM THE FREEDOM OF ESTABLISHMENT

Article 51 TFEU allows MS to exclude activities connected even occasionally with the
exercise of the official authority
Article 52 TFEU provides for derogation form the right of establishment and right to
provide/receive services on grounds of public policy, security & health
Saarland (2010) – German rules that required that certain medicines could be supplied only
by qualified pharmacists could be considered as an obstacle to trade X however this was
justified on grounds of the protection of human health
Nasiopoulos (2014) – refusal to recognise a qualification as a masseur-hydrotherapist
which enables an autonomous profession to be exercised in one MS, constituted an obstacle
to the freedom of establishment which could not be justified by the objectives of consumer
protection or protection of public health

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MUTUAL RECOGNITION OF QUALIFICATIONS – Directive 2005/36

- A.49 and A.56 TFEU both have direct effect
- Commission in addition to that created Directives intended to provide for the mutual
recognition of professional standards to make it easier for non-nationals to exercise
their rights in particular fields in other MS
- this is enshrined in the Directive 2005/36
- 2 main principles: mutual trust and mutual recognition
- education or training must be comparable and if this is not satisfied, additional
examinations may be required
Reyners (1974) – Court found that even if there is no Directive harmonising national rules
on the qualifications required for a particular activity, A.49 itself contains a directly effective
prohibition of discrimination which can be relied upon
Patrick (1977) – rule in equal treatment is a fundamental right, referring to a set of laws
effectively applied by the country of establishment to its own national, this rule is, capable of
being directly invoked by nationals of all other MS
Bouchoucha (1990) – in the absence of harmonisation at Community level regarding
activities which falls solely within the scope of the practice of medicine, A.52 does not
preclude a MS from restricting an activity typical to medicine such as osteopathy exclusively
to persons holding the qualification of doctor of medicine
UNECTEF v Heylens (1978) – qualified Belgian football trainer applied for a job in France
and his qualification was not recognised – MS do have a right to lay down conditions of
access to an occupation but must assure themselves to an objective basis, whether the
foreign diploma is equivalent
Vlassopoulou (1991) – Greek lawyer specialised in German law and was working in
Germany but was refused admission to the German bar because she lacked German legal
qualifications; where there is a shortfall in applicant’s formal qualifications, MS must examine
the A’s experience to see if it makes up the difference
CAN NATIONALS RELY ON A.49 AGAINST THEIR HOME STATE?

Auer (1979) – in past, Court has held that individuals may not rely on A.49 against their
home state for the recognition of qualifications received in another MS
Knoors (1979) – however, where matter is governed by a Directive, they may rely on the
Directive against their state – the provisions may be relied upon by nationals of all MS who
are in the situations which Directive defines for its application even in respect of the state
whose nationality they possess
Directive 2005/36 – individual will be able to use A.49 in conjunction with the Directive
against their home state
Bouchoucha (1990) – French individual qualified as osteopath in UK and then tried to
practice in France where one had to be a doctor to practise, Court held that the provision in
France was not arbitrary

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GRADUAL CONVERGENCE BETWEEN ESTABLISHMENT AND SERVICES

Fazari (2006) – Italian law prohibited derogation from minimum fees for lawyer’s services –
this was held to be a restriction on the provision of services under A.56 and same for the
freedom of establishment
Commission v Italy (2012) – Italian legislation imposing maximum fee tariffs for lawyers
complies with the fundamental freedoms of the internal market – Italian law did not deprive
other MS lawyers of the opportunity of gaining access to the Italian market under conditions
of normal and effective competition
RECOGNITION OF THIRD COUNTRY QUALIFICATIONS

Tawil-Albertini (1994) – French national qualified as dentist in Lebanon, Belgium
recognised this qualification but France did not – a bilateral agreement whereby one MS
accepted the qualifications of a non-MS did not oblige other MS to accept them
Haim (1994) – Italian national qualified as a dentist in Turkey, his qualification was not
recognised under the EU Directive for dentists but he worked for 8 years in Belgium, he was
refused job in German social security system and was told he needs 2 more years of training
 mere fact that a particular qualification is not listed in the Directive, giving automatic right
of recognition, does not mean a MS can refuse to accept it even if it was obtained in a non-
MS
(UK, Ireland and Denmark are not part of the Directive)

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FREE MOVEMENT OF CAPITAL

Casati (1981) – unlike the provisions on the free movement of goods, persons and services,
the complete free movement of capital could undermine the economic policy of the MS thus
freedom of movement of capital should be extended to the ample necessary to ensure the
proper functioning of the common market + A.67 TFEU is not directly effective
Criminal Proceedings against Sanz de Lera (1995) – A.63 has a direct effect!
Trummer v Mayer (1999) – what falls within the scope of capital? We can refer to the Annex
of Directive 88/361; mortgages, direct and financial investments, granting of loans and
credits, gifts in money or kind
Westdeutsche Landesbank (2001) – mortgages
Commission v Belgium (Golden Share) (2002) – direct investments
Commission v Netherlands (2006) – financial investments
Hein Persche (2009) – gift in money or kind
Verkooijen (2000) – receipt of dividends from a foreign company
A.63 – all restrictions on capital movement between MS are prohibited, prohibition extends
to all obstacles, not just discriminatory ones, it creates a general prohibition going beyond
mere elimination of unequal treatment
Konle v Republik Östereich (1999) – measure exempting Austrians from planning

authorisation requirement was held to be directly discriminatory
Commission v Portugal (2002) – limited number of shares acquirable by foreign investors
was held to be directly discriminatory
Association Eglise (2000) – provision that makes foreign investment subject to prior
authorisation is directly discriminatory and thus constitutes a restriction to the free
movement of capital
Sandoz (1999) – a stamp duty imposed in Austria but not imposed in Belgium was directly
discriminatory under A.63
Jäger (2008) – inheritance tax on property inherited elsewhere was higher than for property
inherited in Germany – direct discrimination
Hollmann (2007) – Portuguese measure stated that non-residents were subject to a higher
rate of capital gains tax than residents when transferring immovable property from another
MS – indirect discrimination
Commission v UK (2003) – provisions limiting possibility of acquiring shareholdings in the
British Airports Authority over a certain level were in breach of A.63 – it was not
discriminatory since it applied both to UK citizens and non-nationals, but they were likely
to deter investors from other MS

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Amurta (2007) – measure treating dividends paid to companies established in another MS

less favourably than those established in Netherlands were likely to deter foreign investors
to invest in the Netherlands – a non-discriminatory measure
A.64 – free movement goes beyond boundaries of the internal market to cover the
movement of capital between Member States and third countries
- such freedom cannot exist without sensible safeguards and protections

- for capital movements between MS and third countries, MS have:
1. the option of implementing safeguarding measures in exceptional circumstances

2. possibility of applying restrictions that existed before a certain date to third
countries and certain categories of capital movements, and
3. basis for introduction of such restrictions (only under very specific
circumstances)
Skatteverket v A (2007) – Swedish tax law granted exemption to taxpayers in respect of

dividends distributed by a company established in Sweden or another Member State within
the EEA but refused to grant such an exemption where the distribution of dividends was
made by a company established outside the EEA – this discouraged taxpayers form
investing their capital in companies established outside EEA x the measure was justified on
the grounds of fiscal supervision
PUBLIC INTEREST JUSTIFICATIONS – list of public interest justifications is open ended,

but to this date the Court has accepted inter alia the following:
- fiscal supervision – Skatteverket (2007)

- smooth transition from one state to another – STEKO (2009)
- guarantee of services of general interest – Commission v Netherlands (2006)
- maintaining permanent population + economic activity independent of the tourist sector
- Konle
- safeguarding the supplies of petroleum, telecommunications and electricity sectors
- Radiosistemi (2002)
Verkooijen (2000) – justifications of a purely economic nature are not accepted

Konle (1999) – Austrian nationals were exempted from a need for prior planning
authorisation but this was justifiable on the grounds of maintaining a permanent population
and an economic activity independent of the tourist sector, nevertheless the risk of
discrimination inherent in such a system was so high that the measure constituted a
disproportionate restriction to the free movement of capital
Commission v Netherlands (2006) – measure prohibited by A.63 could be justified on the
grounds of the guarantee of services of general interest, but it went beyond what was

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necessary to safeguard the solvency and continuity of the provider of a universal postal
service
A.65 – supplemented by A.75 and A.215

 tax derogations must not represent a means of arbitrary discrimination or a
disguised restriction
A.65(1)(a) tax provisions distinguishing between resident and non-

resident taxpayers or the place where their capital is invested
A.65(1)(b) Measures to prevent infringements of national law relating to
taxation and the prudential supervision of financial services
A.65(1)(b) Measures to lay down procedures for the declaration of capital
movements for the purposes of administrative or statistical
information
A.65(1)(b) measures justified on the grounds of public policy or security
policy
A.65(1)(a) tax provisions distinguishing between resident and non-resident

taxpayers or the place where their capital is invested
Scientologie – derogations under A.65 must be interpreted strictly so that their scope
cannot be determined unilaterally by MS, they cannot be misapplied to serve purely
economic ends and all derogations are subject to the principle of proportionality
Lenz (2004) – derogation did not mean that any tax legislation distinguishing between
taxpayers was automatically compatible with EU law
Verkooijen (2000) – CJEU stated two considerations when determining whether a
differential tax measure fell within the meaning of A.65
1. whether the situations of different taxpayers are objectively comparable
2. whether the measure is proportionate and whether it can be justified by an overriding
reason of general interest
Blanckaert (2005) – national law provided tax credits in respect of national insurance only
to resident taxpayers insured under the national social security system and the measure was
justified by objective difference between person insured under the national security system
and a person not so insured
Persche (2009) – national law provided for tax deduction on gifts to charitable bodies –
measure could not be justified under A.65(1)(a) as Portuguese and German charities were
in an objectively comparable situation in terms of their tax treatment
Bouanich (2006) – Swedish national law provided that share repurchase payments made
to resident shareholders were taxed as a capital gain with a right to deduct the cost of
acquisition, same payments made to non-resident shareholders were taxed as dividend with
no right to deduct the cost of acquisition – could not be justified under A.65

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Hollmann (2007) – Portuguese measure stated that non-residents were subject to a higher
rate of capital gains tax than residents when transferring immovable property from another
MS – indirect discrimination, could not be justified
- the court stated that where:
1. the taxation in Q concerns only one of the categories of income received by
taxable persons, whether they are resident or non-res,
2. it concerns both categories of taxable persons, and
3. the MS in which the taxable income arises is the MS concerned, there is no
difference in situation which is capable of justifying the differential tax
treatment for the purpose of the A.65(1)(a)
Weidert and Paulus (2004) – measure provided income tax relief to persons for the
acquisition of shares, this was available only for shares acquired from companies
established in LUX and not in another MS – not proportionate
Walter Stauffer (2006) – measure required a charitable body established in another MS to
meet certain conditions to be entitled to a tax exemption (disproportionate)
A.65(1)(b) measures to prevent infringements of national law and regulations
(taxation and prudential supervision of financial institutions)
Bordessa (1995) – A.65(1)(b) can be extended to encompass measures such as those

designed to prevent illegal activities of comparable seriousness, such as money laundering,
drug trafficking or terrorism
Sandoz (1999) – measure taken in order to prevent tax evasion – such measure was
permissible as it prevented taxable persons from evading the requirements of domestic
legislation
Eurobond (2000) – national law prohibited residents form acquiring securities of loans which
were issued abroad in another MS, rule was disproportionate, there was no direct link
between the rule and a fiscal advantage or disadvantage
Scientologie – derogations under A.65 must be interpreted strictly so that their scope
cannot be determined unilaterally by MS, they cannot be misapplied to serve purely
economic ends and all derogations are subject to the principle of proportionality
Commission v Belgium (2002) – Belgian government could continue to hold its golden
shares in the company on the grounds that it would safeguard energy supplies in the event
of a crisis provided the shares enabled the country to maintain a minimum level of energy
supplies
Commission v France (2002) – rule requiring prior authorisation of any direct or indirect
shareholding over and above certain limits of a company was disproportionate and contrary
to the principle of legal certainty

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TRADE HARMONIZATION
- A.114 TFEU – cooperation procedure + QMV in all but the most sensitive fields
- provides the legal basis for the EU legislature to ‘adopt the measures for the
approximation of the provisions laid down by law, regulation or administrative action
in Member States which have as their object the establishment and functioning of the
internal market’
Article 3 TFEU areas in which only the EU can act and includes
exclusive measures relating to customs union, monetary policy,
competence competition policy and concluding of int’l agreements
areas where both the EU and the MS can adopt legally

binding measures, but MS can only act if the EU has
Article 4 TFEU chosen not to (i.e. in accordance with the principle of
shared subsidiarity)
competence  such measures include: internal market, social
policy, environment, consumer protection, transport,
energy, security and justice
Article 6 TFEU
supporting, areas such as protection and improvement of human
coordinating or health, culture and tourism
supplementing
competences
- exclusive Union competences can be derived from various sources, including:

▪ express provisions in Article 3 TFEU
▪ scope of internal measures adopted by the Union institution (pre-
emption)
▪ express provisions in internal Union measures and situations where
internal powers can only be effectively exercised at the same time as
external powers
Opinion 1/75 (1975) – in the field of common commercial policy, EU powers must lead to
the exclusion of concurrent powers exercisable by the MS other than in specific areas –
areas where EU specifically authorised MS to act – Donckerwolcke (1976) and those where
existing obligations necessarily had to be carried out by the MS
– Bulk Oil (1986)
Amsterdam Bulb (1977) – even where EU institutions have not acted, when powers were
given to them, MS cannot act unilaterally – they must cooperate and consult the Commission
since failure to act may be a deliberate choice of economic policy

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Gali (1975) – once EU used its legislative powers to set up a common agricultural market
organisation, national powers to regulate the distribution stages covered by that market
organisation were pre-empted
Walt Wilhelm (1969) – this case highlighted difficulties in respecting the demarcation
between national and community competition law
SCOPE OF ARTICLE 114 TFEU
A.114 can be used to adopt measures harmonising national rules if:

1. they are not simply differences in national rules but differences which actually
obstruct free movement
2. the measure has the genuine aim of overcoming those obstacles
Tobacco Advertising (2000) – EU overstepped when tried to harmonise national laws by

an EU-wide ban on all forms of tobacco advertising and sponsorship – the rule did not
genuinely improve conditions for the establishment and functioning of the internal market, it
went too far
Germany v EP (2006) – A.4(2) of the Tobacco Directive barred sponsorship of radio

programmes by tobacco companies – the intervention by EU legislature was justified,
express prohibition of any harmonisation of MS law in area of public health did not preclude
a harmonising measure adopted on another basis from having an impact on human health
protection and this rule was alright, it left journalistic freedom of expression unimpaired
Kanatami (2013) – EU-wide ban on trade in seal products was held to improve the
functioning of the internal market which was the principal objective oppose to the welfare of
animals (it is on appeal now)
INDIRECT HARMONISATION
Cassis de Dijon – MS are obliged to recognize goods which have been produced in another
MS even in the absence of harmonized standards – this principle would apply automatically
unless MS could justify a restricting measure by reference to a mandatory requirement or
A.36 TFEU
Spirituosen-Industrie (2007) – assessing a Directive regulating the packaging of liquids

and the free movement of goods, MS cannot prohibit the marketing of pre-packages with a
nominal volume of 0.071 litres
- packaging was lawfully manufactures and marketed in one MS and to prohibit its sale
in another MS was contrary to the principle of mutual recognition

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DEROGATIONS
Moormann (1988) – EU has a fully harmonised system of animal and plant health
inspections including Community procedures to check that the rules are observed, MS
cannot rely on the A.36
Sandoz (1983) –Directive did not deal with vitamins so it was possible for MS to invoke A.36
to justify the imposition of its own rules on the vitamin content of imported goods.
provides the right for Member States to derogate on the

Article 114 grounds laid out in Article 36 TFEU or for the protection of
(4) the environment or the working environment
provides the right for Member States to introduce restrictive
Article 114 measures after the implementation of harmonising measure
(5) on the basis of new scientific evidence specific to that
Member State
Article 114 states that the Commission has 6 months to approve or

(6) reject an application for derogation
Article 114 states that the Commission has the right to adapt a
(7) derogating measure which it has authorised
states that when a Member State raises a specific problem on

Article 114 public health in a field already subject to harmonisation
(8) measures, it shall bring it to the attention of the Commission
Article 114 provides the right of the Member States and the Commission
(9) to appeal a restrictive measure by another Member State
Germany v Commission (2003) – conditions under the provision, that restrictive measures
must be based on new scientific evidence, arising after the implementation of the
harmonising measure which results in problems specific to the MS, are cumulative in nature
and must all be satisfied if the derogating national measure concerned is not to be rejected
by the Commission
Land Oberöstereich (2007) – Austria applied for a derogation from Directive deliberate
release of GMOs but failed to prove by evidence that the territory of the Land Oberösterreich
contained unusual or unique ecosystems susceptible to GMO

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COMPETITION POLICY
Article 101 TFEU – all agreements between undertakings, decisions by associations of
undertakings and concerted practices which may affect trade between MS and which have
as their object or effect the prevention, restriction or distortion of competition within the
internal market are prohibited.
Article 102 TFEU – any abuse by one or more undertakings of a dominant position within
the internal market or in a substantial part of it shall be prohibited as incompatible with the
internal market in so far as it may affect trade between MS
Council Regulation 1/2003 – major decentralisation of the enforcement of EU competition
rules – the system places responsibility on the undertakings themselves to assess whether
their agreements or activities are compatible with the EU competition rules
ARTICLE 101 TFEU

UNDERTAKING:
Höfner and Elser (1991) – concept of undertaking encompasses every entity engaged in
an economic activity regardless of the legal status of the entity and the way in which is it
financed
FENIN (2006) – CJEU found that the purchasing of goods is not an economic activity when
the goods are not offered for resale but used to perform a public function (such as social
welfare)
Centrafarm (1974) – A.101 is not concerned with agreements or concerted practices
between undertakings belonging to the same concern and having the status of parent
company and subsidiary, if the undertakings form an economic unit within which the
subsidiary has no real freedom to determine its course of action on the market, and if the
agreements or practices are concerned merely with the internal allocation of tasks as
between the undertakings
Alliance One (2012) – mere fact that a parent company and its subsidiary exercised, during
a certain period, joint control of the subsidiary which has committed an infringement can
satisfy a finding that those companies formed an undertaking (provided they exercised
decisive influence over the commercial policy)
AGREEMENT:
Consten and Grundig (1966) – agreement should only apply to agreements between
companies operating at the same level in the chain of production/distribution (i.e. horizontal
agreements), such as between competing manufacturers of TV
ACF Chemiefarma (1970) – informal gentlemen’s agreement is covered so companies
cannot evade A.101 by agreeing things e.g. orally
Polypropylene (1988) – CJEU held that a cartel in the chemical sector formed part of a
single, overall agreement – all 15 firms involved were part of this agreement, even those
which had not attended every meeting of the cartel – agreement need not be one-off event
(it can last years)

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Anic (1999) – burden of proof is on the undertaking concerned to prove that it did not intend
to participate in the implementation of the agreement
Volkswagen (2000) – if the distributor has accepted and continued to deal with the
manufacturer, there is an agreement
Bayer/Adalat (1996) – there is no agreement if there is no common interest between the
manufacturer and its distributors and the latter have done their utmost to avoid compliance
with the anti-competitive terms
DECISIONS BY ASSOCIATIONS OF UNDERTAKINGS:

IAZ International v Commission (1983) – decisions by assoc. of undertakings can
encompass decisions, recommendations and codes of practice – even if they are not
formally binding on the members, where it is shown that members have tended to comply
with them
Wouters (2002) – restrictive rule of a Dutch bar association preventing lawyers from entering
partnerships with other professionals such as accountants was therefore capable of
breaching A.101 – nevertheless the rule was necessary and it was OK
MasterCard (2012) – proportion of the price of a payment card transaction that is retained
by the card-issuing bank applied under the MC card system and these interchange fees
were contrary to competition law
Ordem (2013) – regulation adopted by a professional association putting into place a system
of compulsory training for chartered accountants to guarantee the quality of their services
constituted a restriction under A.101
Cement (1994) – Court considered the European Cement Association whose members
were the national associations of the MS of the EU and EFTA – A.101 covers decisions of
associations of associations
CONCERTED PRACTICE:
Dyestuffs (1972) – the concept of concerted practice extends the scope of A.101 even
further to include co-ordination between undertakings which, without having reached the
stage where an agreement properly so called has been concluded, knowingly substitutes
practical cooperation between them for the risks of competition
Sugar Cartel (1975) – CJEU held that it was not necessary to prove that there was an actual
plan to restrict competition
Protimonopolny urad Slovenskej republiky (2013) – all that is required is some contact
between the companies and some conscious cooperation, agreement to exclude a
competitor is in breach A.101 even when the competitor is operating unlawfully on the market
Re Woodpulp (1994) – only evidence Commission could rely on to support its finding of
concerted practice between producers was that of simultaneous price increases, despite the
fact that the producers were based in different parts of the world – Court annulled the

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Commission decision, holding that parallel price raises could be evidence of collusion but
proof was required beyond reasonable doubt
UK Agricultural Tractor (1993) – exchanging commercially useful or sensitive information
can, in itself, amount to a concerted practice when it enables competitors to see what
strategy other competitors are pursuing and to respond accordingly
Tate and Lyle (1999) – only one of the number of companies present gave information on
its future prices did not prevent there from being a prohibited agreement or concerted
practice between the undertakings for purposes of A.101
Huls (1999) – it is not necessary for Commission to prove actual effects of the concerted
practice on the market, potential effect suffices
HORIZONTAL OR VERTICAL AGREEMENTS:

Horizontal = involves two or more undertakings at the same level of supply or distribution
that fix prices, agree to limit production, share markets or engage in collusive tendering
Vertical = involves undertakings at different levels of supply and distribution
Allianz Hungaria (2013) – agreements concerning the price of repairs of insured vehicles
concluded between insurance companies and repair shops have an anticompetitive object
and are therefore prohibited under A.101
Consten and Grundig (1966) – Grundig agreed with Consten that the latter would be the
exclusive dealer of Grundig’s products in France, Grunding itself would not compete with
Consten and nor supply any other distributor in France – CJEU found these measures to be
intended to make it possible to keep under surveillance and to place and obstacle in the way
of parallel imports and, despite being a vertical agreement, fell within the prohibition of A.101
T-Mobile (2009) - “object or effect” distinction is disjunctive, so where agreement has as its
object the prevention, restriction or distortion of competition, there was no requirement to
establish an effect
EFFECT OF PREVENTION, RESTRICTION or DISTORTION OF COMPETITION

STM (1966) - as the agreement did not have the ‘object’ of the prevention, restriction or
distortion of competition, its ‘effect’ on competition had to be determined – the Court stated
that the effect on competition had to be considered by comparison with the competitive
situation had the agreement not been implemented
Cementhandelaren (1972) – even if the parties are all within one MS, there will likely be an
effect on trade between MS where the arrangement makes market penetration more difficult
for companies from other MS

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THE DE MINIMIS RULE

Commission Notice on Agreements of Minor Importance (2001) - according to this
Notice, whether an agreement, decision or concerted practice has ‘appreciable effect’
depends solely on the market shares of the undertakings involved - the thresholds for the
market shares in horizontal and vertical agreements between undertakings are 10 and 15%
respectively, in the case of a mixed horizontal/vertical agreement or where it is difficult to
classify the agreement as either horizontal or vertical, the 10% threshold applies
ANCILLARY RESTRAINTS
Wouters (2002) – restrictions which are objectively necessary to the main agreement and
essential for its operation will be considered with the agreement under A.101 – this rule
expands to encompass non-economic objectives
Meca-Medina (2006) – a case dealing with anti-doping sanctions, the Court held that the
economic objective to ensure the organisation and proper conduct of competitive sport
precluded the application of A.101(1)
THE PER SE PROHIBITION versus THE RULE OF REASON TEST

A.101 has meant that a vast array of ordinary commercial agreements (such
as franchises, exclusive purchase/supply or distribution agreements) were
prima facie illegal under EU law - in the real world, however, business cannot
function without such agreements
- under such a system, there is a two-step process, whereby an agreement

must first be considered as prohibited by Article 101(1) before it can be
considered for exemption under Article 101(3) through an analysis of its pro-
and anti-competitive effects
- this two-stage process can be contrasted with the US ‘rule of reason’

approach which balances the pro- and anti-competitive consequences of an
agreement before a finding of infringement is made
Metropole TV M6 (2006) – CJEU confired two-stage approach and rejected the rule of
reason alternative, then it went on to say that those cases where the courts had shown a
flexible approach to the application of Article 101(1) ‘cannot be interpreted as establishing
the existence of a rule of reason in Community competition law’

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EXEMPTION UNDER ARTICLE 101(3) TFEU

individual exemptions
- agreements or decisions which fall within the prohibition of A.101(1) are void under
A.101(2) unless it is possible to sever the offending clause (Consten and Grundig)
- A.101(3) provides instead agreements that can satisfy 4 requirements are not void
under A.101(1)
1. the restriction contributes to improving the production or distribution of goods or to

promoting technical or economic progress
2. consumers receive a fair share of the resulting benefit from the restriction
3. restriction on competition must be necessary for the achievement of the
improvement or progress claimed in (1) above
4. the restriction must not put the parties in a position to eliminate competition in
respect of a substantial part of the products in question
block exemptions for vertical agreements

- in order to reduce the quantity of applications for exemption, the Commission issued
a number of block exemptions
- these were regulations which set out a number of requirements and prohibited clauses
for contracts, which, when fulfilled, automatically lead to exemption from the
application of Article 101(1)
- however, following criticism of these regulations, the Commission initiated a reform,

most important outcome of which being the general block exemption on vertical
agreements and concerted practices, Regulation 2790/99
- Regulation 2790/1999 replaces the separate block exemptions and covers all types
of vertical restraints, including selective distribution agreements (i.e. agreements
which restrict the number of authorised distributors)

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REGULATION 1/2003
- some of the key articles of the Regulation are as follows:
A.1: provides that the whole of Article 101 is directly effective. Once an infringement
has been established, the Article 101(3) defence is available.
A.3: states that whenever dealing with an agreement or practice covered by Article
101 or 102 which may affect trade between Member States, NCAs are obliged to
apply EU competition law, either on its own or alongside their national provisions.
However, the supremacy of the EU rules over any conflicting national provisions is
protected.
A.5: NCAs can apply Articles 101 and 102 in individual cases; decide whether the
conditions of Article 101(3) are satisfied; order the ending of an infringement; order
interim measures; accept commitments; and impose fines, penalty payments or
other national law penalties.
A.6: now gives the national courts the jurisdiction to apply Article 101(3) as well as
Article 101(1) and (2) and Article 102.
- the Commission can take four decisions under the new regime, which are the
following:
A.7: includes a new power to impose ‘behavioural or structural remedies’. Previously

the Commission could only impose fines.
A.8: allows the Commission to order interim measures in cases of urgency ‘due to
the risk of serious and irreparable damage to competition’.
A.9: allows the Commission to accept commitments from the undertaking(s) to meet
its concerns.
A.10: allows Commission to decide that there has been no breach, or that the Article
101(3) conditions for exemption are fulfilled.
…ETC.

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ARTICLE 102 TFEU
- A.102 provides for the punishment of undertakings in a position of strength on the

market when they abuse their position
- it is not dominance or strength which is unlawful but its abuse – however, behaviour
which may be lawful when practised by a non-dominant company may be unlawful
when carried out by a company in a dominant position
DOMINANT POSITION
relevant market = product market + geographical market
a. product market
United Brands (1978) – the Court agreed with Commission’s finding that bananas are not
interchangeable, fulfil specific consumer needs and are in their own product market
Michelin (1983) – it was not easy to switch from producing tyres for cars to producing tyres
for heavy goods vehicles so there was no elasticity of supply between them (they were
therefore in separate product markets)
Continental Can (1973) - Commission’s decision, finding that Continental Can was
dominant on the market for light metal cans for meat and fish, was annulled because, inter
alia, it had not shown that customers could not easily manufacture the required cans
themselves
b. geographical market
- Over what geographical area are producers in competition with each other?
- markets can be global or local, relevant geographic market is area in which available and
acceptable substitutes to the product exist
United Brands (1978) – CJEU defined the geographic market as “an area in which the
objective conditions of competition are the same for all traders”
DOMINANCE
United Brands (1978) – CJEU defined dominant position as a position of economic
strength enjoyed by an undertaking which enables it to prevent effective competition being
maintained on the relevant market by giving it the power to behave to an appreciable
extent independently of its competitors, customers and ultimately of its consumers.
market share – dominance is determined by the undertaking’s market share

AKZO (1991) – Court held that a company with a 50% share or above will normally be
dominant
Hoggmann La Roche – market share must have been held for a period of time
British Airways (2007) – CJEU found BA to be dominant in the market for air travel agency
services, where it had a share of 39.7% - the court took into account the nearest rival had
only a 5.5% share

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BARRIERS TO ENTRY
- in assessing the dominance of an undertaking, barriers to the access to the market of
new companies must be taken into account
Legal provisions Tetra Pak Int SA v Commission [1996]
United Brands v Commission [1978]
Superior technology Michelin v Commission [1983]
Hoffmann-La Roche v Commission
[1979]
Deep pocket United Brands v Commission [1978]
Continental Can Co Inc v Commission
[1973]
Economies of scale, United Brands v Commission [1978]
vertical integration and Hoffmann-La Roche v Commission
well-developed [1979]
distribution systems
Product United Brands v Commission [1978]
differentiation/brand
image
“SUBSTANTIAL PART” OF THE COMMON MARKET

- A.102 requires that an undertaking must be dominant within the internal market or in
a substantial part of it = de minimis threshold
Suiker Unie (1975) – part of a Member State is substantial; Southern Germany was
sufficient to fulfil the requirement
COLLECTIVE DOMINANCE
Societa Italiano (1992) – nothing prevents two or more independent undertakings on a
specific market being united by such economic links that together they hold a dominant
position vis-à-vis other operators on the same market
Almelo (1994) – in order for collective dominance to exist, the undertakings in the group
must be linked in such a way that they adopt the same conduct on the market
Compaignie Maritime Belge (1996) – CJEU upheld a finding of collective dominance
Irish Sugar (2001) – the Commission’s finding of vertical collective dominance between Irish
Sugar and a distributor of sugar, was upheld by the General Court
DEFINITION OF ABUSE
- A.102 does not prohibit dominance, but rather the abuse of a dominant position
Michelin – although dominance is not illegal in itself, the Court held that a dominant
company has a special responsibility not to act in a way that will lead to a decrease of
competition on the market

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TYPES OF ABUSE
EXCESSIVE PRICES – using of power on the market to charge customers excessively high
prices is an abuse, albeit difficult to prove
PREDATORY PRICING – price cuts designed to drive out the competition constitute abuse
– AKZO (1991)
SELECTIVE PRICING – Irish Sugar (1999) – offering lower prices to its competitors’
customers while maintaining higher prices for its regular prices was held to be selective
pricing was abuse
FIDELITY DISCOUNTS
Hoffmann-La Roche (1979) – offering discounts for customers agreeing to buy
all their vitamins from the dominant company was condemned as abuse
British Airways (2007) – BA abused its position in the air travel agency market
by offering travel agents loyalty payments and commissions which were not
related to increased efficiency
Post Denmark (2012) – undertaking in a dominant position of charging low
prices to certain former customers of a competitor – this policy cannot be
considered to amount to an exclusionary abuse merely because the price the
dominant undertaking charged was lower than the average total costs of the
activity concerned
TYING = this occurs when a dominant company obliges customers to buy another product
as a condition of supplying the main product
Tetra Pak (1996) – TP insisted that buyers of its machines for filling cartons
should buy all their cartons from Tetra Pak as well – this was an abuse
Microsoft (2007) – Microsoft engaged in the abusive bundling of its media
player with the Windows operating system
REFUSAL TO SUPPLY = it is an abuse for a dominant supplier of raw materials to cut off
supplies to a company which uses those materials to make another product so that the
dominant company can start making that product itself without competition from that other
company
Commercial Solvents (1974) – it is abuse to refuse to supply a distributor in
order to punish them for promoting a competitor’s product
United Brands (1978) – it is an abuse to refuse to supply a long standing
customer who abides by normal commercial practice

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REFUSAL TO SUPPLY “ESSENTIAL FACILITIES”

RTE, BBC & ITP (1991) – abuse does not only arise where the refusal to supply
is against a longstanding customer – refusing to grant a copyright licence to a
new customer was also an abuse since it prevented the emergence of a new
product for which there was customer demand
Bronner (1998) – court laid down strict test that facility must be indispensable
and that there are technical, legal or even economic obstacles capable of
making it impossible, or even unreasonably difficult to compete without access
to the facility concerned
IMS Health (2004) – refusal to grant a licence for a data system which was protected
by copyright was held to be abusive stating three conditions:
1. the refusal must prevent the emergence of a new product for which there was a
potential consumer demand
2. the refusal must be unjustified
3. the refusal must exclude any competition on the secondary market
Microsoft (2007) – it was held that while the refusal by the owner of an intellectual
property right to grant a licence, even where it is an act of an undertaking in a dominant
position, cannot in itself constitute an abuse of a dominant position, the exercise of the
exclusive right by the owner might, in exceptional circumstances give rise to abusive
conduct
COMPENSATION
- under EU law the victims of infringements of competition law can claim compensation
for the actual loss, for loss of profit and payment of interest accruing from the moment
of time the harm occurred until the moment compensation is paid – this is governed
by national law
MERGERS
- the EU Treaties do not contain any express provision to deal with mergers and
acquisitions, even though these can have important consequences for competition
- despite this, attempts were made to use Articles 101 and 102 to fill this gap
Continental Can (1973) – it is an abuse of a dominant position under A.102 for a dominant
company to take over a rival company on that market – however, A.102 could apply to
mergers only where one of the parties was in a dominant position
BAT (1987) - it was suggested that A.101 might apply where companies acquired cross-
shareholdings as this would reduce competition between them o the precise circumstances
in which A.101 would be breached were unclear, however, and this led to considerable
uncertainty - this is now governed by Council Regulation (EC) No 139/2004 of 20 January
2004

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FREE MOVEMENT OF PERSONS AND CITIZENSHIP

- people are divided into three economic categories:
Article 45 TFEU workers
Article 49 TFEU self-employed people and companies established in another MS
Article 56 TFEU people or companies providing services in another MS
- Council Directive 2004/38/EC – right of citizens of the Union and their family
members to move and reside freely within the territory of MS
SCOPE OF THE FREE MOVEMENT OF WORKERS
- A.45 applies only to workers who are nationals of the MS, but the CJEU has
interpreted this very broadly to include job seekers, family members …etc.
- A.45 also contains certain derogations that MS can rely upon to justify a breach of
the free movement on public policy, public security and public health - A.45(3) and in
respect of employment in the public service - A.45(4)
INDISTINCTLY APPLICABLE MEASURES
Bosman (1995) – UEFA transfer rules hindered him from transferring to play for another
club, the rules applied to all players (they were non-discriminatory) – nevertheless the Court
held that the rules were capable of hindering access to employment and thus illegal
Kranemann (2005) – German lawyers go through practical placement for which trainees get
allowance and travel expenses are reimbursed – Kranemann decided to do his placement
in the UK but was reimbursed only for travelling within borders – provision preclude or deter
nationals of a MS from leaving his country to exercise his right to freedom of movement
Burbaud (2003) – requirement to take an exam to work in the public service is not in itself
an obstacle to free movement
WHO IS A WORKER?
Hoekstra (1964) – worker is not exclusively someone who is currently employed, but it also
covers persons likely to remain in territory of a MS after having been employed in that state
Levin (1982) – concept of workers applies to those engaged in part-time work for less than
minimum wage
Kempf (1986) – work engaged by a worker must be provided for remuneration and be effect
and genuine, not marginal or ancillary
Lawrie-Blum (1986) – remuneration was deemed to include the situation of trainee teachers
working under supervision and receiving remuneration for giving lessons to pupils – the work
itself must be an economic activity
Bettray (1989) - the essential feature of an employment relationship is that for a certain
period of time a person performs services for and under the direction of another person in
return for which he receives remuneration, o as long as an effective and genuine activity is
pursued, the level of productivity, the source of the funds from which the remuneration is
paid and the nature of the legal relationship between the employee and the employer are of
no consequence in regard to whether or not a person is to be regarded as a worker

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Bernini (1992) – applying objective criteria to the test of effective and genuine work could
include someone in occupational training if there was proof that the trainee had worked long
enough to become fully acquainted with the job performed
Collins (2004) - Court stated that Collins could not be regarded as a worker because no link
could be established between his studying in the UK in 1981 and his search for another job
more than 17yrs later, his position in 1998 must therefore be compared with that of any
national of a MS looking for his 1st job in another MS for only those who have already entered
the employment market may claim the same social and tax advantages as national workers
JOB-SEEKER
Antonissen (1991) – if a person is actively seeking work and has a genuine chance of
success, they must be allowed to stay and exercise right to move and stay within the host
MS for the purposes of seeking employment – MS must allow a reasonable period
EQUAL TREATMENT FOR WORKERS AND THEIR FAMILIES

EQUAL ACCESS TO EMPLOYMENT
Groener (1989) – level of linguistic knowledge must be proportionate (it must relate to actual
demands of the job and not be set too high), access to employment also must not be
restricted by indirectly discriminating requirements
Agnonese (2000) – rule requiring a specific certificate providing a person was bilingual was
indirectly discriminatory and contrary to A.45 since applicant was bilingual but could not have
obtained the certification
Commission v Belgium (1980) – MS can restrict access for non-nationals to employment
in public service – A.45(A), there must be a special relationship of allegiance to the state
and reciprocity of rights and duties which form the foundation of the bond of nationality
Sotgiu (1974) – state postal service was not to be covered by A.45(4)
Lawrie-Blum (1986) – access to a teacher training scheme which was part of the civil
service was not covered by A.45(A)
Commission v France (1986) – nursing posts in state hospitals were not covered
Commission v France (2011) – notaries were not covered
RIGHT TO RESIDE
Rutili (1975) – workers have a right to reside in another MS for the purpose of employment,
the right of a worker to enter a MS and reside there is conferred directly from the treaty and
is not the result of a MS’s conferral of a residence permit
Olazabal (2002) – MS can impose administrative police measures limiting a worker’s right
of residence to a part of the national territory – it must be justified by reason of public order
or security besed on their individual conduct

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ACCESS TO SOCIAL ADVANTAGES AND OTHER BENEFITS

A.7(1) of Regulation 492/11 – migrant worker must not be discriminated against in respect
of any conditions of employment and work, in particular as regards remuneration, dismissal
and should he become unemployed, reinstatement or reemployment
A.7(1) of Regulation 492/11 – worker shall enjoy the same social and tax advantages
Even (1979) – social advantages = advantages linked to a contract of employment or not,

generally granted to migrant workers primarily because of their objective status as workers
or by virtue of the fact of their residence on the national territory
Sotgiu (1974) – migrant worker from Italy received lower separation allowance for working
in Germany than those whose place of residence when they were first employed was in
Germany = discriminatory measure affecting migrants more than domestic workers
Cristini (1975) – social advantages include entitlement to railcards for discounted rail travel
for large families in France
Mutsch (1985) – right to speak German in proceedings conducted in Belgium where such a
right is available to Belgian nationals
Collins (2004) – fundamental principle of equal treatment extends to benefits of a financial
nature (job-seeker’s allowance) – it was no longer possible to exclude such a financial
benefit from the scope of A.45(2)
Reina (1982) – an interest-free childbirth loan granted under German law to German
nationals in order to stimulate the birth rate was held to be a social advantage
Elisabeta Dano (2014) – jobcentre refused to grant Ms Dano and her son benefits by way
of basic provision in German law – social advantage here consisted of subsistence benefit,
social allowances and contribution to accommodation and heating costs
RESIDENCE REQUIREMENTS
Commission v Luxembourg (2002) – any requirements for a period of residence would
infringe the free movement of persons: requirement for a person to be entitled to income
support for them to be resident in Luxembourg for five years out of the past 20 years was
held to be a breach of A.45
Tas Hagen & Tas (2006) – Tas Hagen and Tas, both Dutch nationals’ resident in Spain
incapable of working applied for a civilian war pension from Netherlands, and they both were
denied on the basis that As were not resident in the Netherlands at the time of application –
in breach of A.45
De Cuyper (2006) – Belgian national was granted unemployment allowance in Belgium on
grounds that he was living alone and in Belgium, in fact he was living in France and returning
to Belgium every three months – the allowance was suspended = authorities infringed A.21
Joseph Baldinger (2004) – Austria was entitled to make a benefit for former prisoners of
war dependent on applicants being Austrian nationals at the time of application – this was
not a social advantage and therefore not covered

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EDUCATION AND VOCATIONAL TRAINING

Kaj Lyyski – Court confirmed that conditions of access to vocational training fall within the
scope of the Treaty
Lair (1988) – person does not cease to be an immigrant Union worker just because they
give up work in order to become a full-time student – there must be a connection between
the course of study and the immigrant’s previous work
Brown (1988) – a work placement was available to students who had been offered a
university place, Court found that As were not entitled to a maintenance grant as a worker
because the employment was merely incidental to the university course
TAX ADVANTAGES
RHH Renneberg (2008) - Court held that Article 45 was applicable, since A was employed
in a MS other than that in which his residence is located o it then went on to state that the
taking into account of the relevant negative income, or the refusal to do so, depended on
whether or not the taxpayer was resident in the NED, and this difference in treatment was
disadvantageous to non-resident taxpayers
Hans-Jürgen (2006) – all forms of direct tax discrimination which impede the exercise of a
fundamental freedom are precluded by EU law
Schumacker (1995) and Wielockx (1995) – A.45 meant that a EU national who gained his
main income and almost all of his family income in a MS other than his state of residence
was discriminated against if his personal and family circumstances were not taken into
account for income tax purposes in the home state
EQUAL TREATMENT FOR WORKER’S FAMILIES – RIGHT OF RESIDENCE

Regulation 1612/68 – specifies members of a migrant worker’s family have the right to
install themselves with the migrant
(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered
partnership, on the basis of the legislation of a Member State, if legislation of
the host Member State treats registered partnerships as equivalent to marriage
and in accordance with the conditions laid down in the relevant legislation of the
host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and
those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse
or partner as defined in point (b).
A.13(2)(a) of Directive 2004/38 – annulment of a marriage or partnership will not entail the
loss of the right of residence of an EU citizen’s family – who are not nationals of an EU MS
– as long as the registered partnership lasted for at least 3 years prior to annulment and that
family also spent at least one of these years in the host MS

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Diatta (1985) - case concerned persons who are married, but no longer living together. The
Court ruled that a marital relationship cannot be regarded as dissolved, as long as it has not
been terminated by the competent authority. If persons live separately the marriage is not
dissolved, even if they have the intention to divorce at a later date. Consequently, to qualify
for a right of residence as a family member under Regulation No 1612/68 (Article 10), it was
not necessary to live permanently with the worker
EDUCATION RIGHTS OF WORKERS’ CHILDREN – Article 12 of Reg.1612/68

Casagrande (1974) – access of workers’ children to education also included any general
measures intended to facilitate educational attendance such as an educational grant for a
secondary school in Germany
Echternach (1989) – even if the parents of the child are no longer resident in the host state,
the child continues to be entitled to education and financial support on the same terms as
children of nationals until their education is completed – and this right does not cease at the
age of 21: Gaal (1996)
Baumbast (2002) – a German national working in China successfully challenged the
deportation of his Columbian wife ordered by UK immigration authorities – children of
migrant workers should be allowed to continue their education in the host MS even if their
primary carer parent was in danger of losing residence either due to divorce or because the
migrant worker had ceased to work there + the child’s primary carer should be allowed to
reside in the MS (A.8 ECHR!)
RIGHTS OF THE UNEMPLOYED

RIGHT OF RESIDENCE FOR JOB-SEEKERS
A.6 of Directive 2004/38 – right of residence up to 3 months

Chapter IV of the Directive – right of permanent residence after 5 years of continuous
residence for Union citizens and their family members who are not Union citizens
A.7 of Directive 2004/38 – conditions for a right of residence for more than three months
for primary movers and family members – they must have sufficient resources not to
become a burden on the financial system of the host state and must have comprehensive
sickness insurance
Antonissen (1991) – if a person is actively seeking work and has a genuine chance of
success, they must be allowed to stay and exercise right to move and stay within the host
MS for the purposes of seeking employment – MS must allow a reasonable period

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EQUAL TREATMENT FOR JOB-SEEKERS
Directive 2004/38 A.24(2) – the host MS shall not be obliged to confer entitlement to
social assistance during the first three months of residence or, where appropriate, the
longer period provided (for job-seekers)
Collins (2004) - Court stated that Collins could not be regarded as a worker because no link
could be established between his studying in the UK in 1981 and his search for another job
more than 17yrs later, his position in 1998 must therefore be compared with that of any
national of a MS looking for his 1st job in another MS for only those who have already entered
the employment market may claim the same social and tax advantages as national workers
Lebon (1987) – job-seeker does not enjoy the same rights as the worker and that except for
the provision on equal access to employment, ex Regulation 1612/68 (now Regulation
492/11) does not apply to jobseekers –social and tax advantages did not apply
Monique Chateignier (2006) – claim for unemployment benefits was a declaration that she
was seeking employment, A therefore fell under A.45 and was entitled to equal treatment
with nationals of the host MS – inclusion of A’s nationality meant that she was placed in a
disadvantageous position = this rule was in breach of A.45
Trojani (2004) - a French, did odd jobs in a Salvation Army as part of a ‘personal socio-
occupational reintegration scheme’ - it was for national court to decide whether he was a
‘worker’ under A.45, but even if he was not, he was an EU citizen lawfully resident in Belgium,
he could not be discriminated against when accessing the minimex subsistence allowance
DEROGATIONS FROM THE FREE MOVEMENT OF PERSONS
Article 45(3) TFEU – there are three possible grounds for refusing entry to or expelling a
national of another MS: public health, public security or public policy
Directive 2004/38 – grounds of derogations will be subject to the principle of
proportionality and MS are required to take into account a number of specific factors before
a person can be expelled
LIMITATIONS ON GROUNDS OF PUBLIC HEALTH

Article 29 of Directive 2004/38 – two public health situations which may justify restrictions
on the free movement of persons: i. diseases with epidemic potential (WHO reference)
ii. other infectious or contagious diseases but only if
restrictions are also being imposed on nationals of
the host state suffering from these conditions
- 3 months from the date of arrival, sufferer cannot be expelled on this ground
- MS can require a medical examination within 3 months of arrival to check whether a
person is suffering from a proscribed disease, but only if there are serious indications
Josemans (2010) – NED unsuccessfully tried to persuade the Court that prohibiting entry
of non-residents into Dutch coffee shops could be justified on grounds of public health

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LIMITATIONS ON GROUNDS OF PUBLIC POLICY and PUBLIC SECURITY

Van Duyn (1974) – CJEU recognised a certain amount of discretion for the UK court and
held that it could still refuse entry to miss van Duyn on the basis that her conduct was socially
harmful, although the scientology movement by which she was employed was not prohibited
by the UK – right of residence may be refused to nationals of other MS even when it could
not refuse its own nationals
X Adoui (1982) – Court did not accept that a MS could deport those who were working in a
non-prohibited job (prostitution) in Belgium, judgment in this case said that Van Duyn would
not be decided in the same way today
Pierre Bouchereau (1977) - a French national who was employed in the UK was found
guilty for the possession of illegal drugs; the Court found that in so far as it may justify certain
restrictions on the free movement of persons, recourse by a national authority to the concept
of public policy presupposes the existence, in addition to the perturbation to the social order
which any infringement of law involves, of a genuine and sufficiently serious threat affecting
one of the fundamental interests of society
Orfanopoulos (2004) – Greek and Italian national long-term residents in Germany
committed various offences and served prison sentences – they were served with
deportation orders together with their families – court must take into account the substantial
diminution of the present threat which the conduct of the person concerned constitutes to
the requirements of public policy
 the national authorities should balance the threat and the fact that the person had
received a particular sentence for specific offences against the fact that he had
resided for many years in the host Member State and could plead family
circumstances against the expulsion
Panagiotis (2010) - when a MS makes an expulsion order, the national authorities should
look to all relevant factors, in particular, the length and frequency of individual absences from
the host Member State and the reasons for the absences, the Court also held that, in order
for the expulsion to be proportionate where the individual has spent most of his life in the
host state, the reason for expulsion must be based on serious and objective reasons
PUBLIC SERVICES EXCEPTION

Sotgiu (1974) – the aim of the exception was the protection by MS of rights to exercise state
sovereignty by restricting access to certain parts of the public service – working in a post
office here could not be classified as a public service exception
Commission v Belgium (No.2) (1980) – employment in the public service must be
connected with the specific activities of the public service in so far as it is entrusted with the
exercise of powers conferred by public law and with responsibility to safeguard the general
interests of the State + there must be reciprocity of rights and duties which form the
foundation of the bond of nationality (teacher here did not fall within the scope of the
exception)

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CITIZENSHIP AND FREE MOVEMENT RIGHTS

A.20 TFEU – gives definition of citizenship and set out the rights protected
A.9 TFEU – every national of MS shall be a citizen of the Union, citizenship of the Union
shall be additional to national citizenship and shall not replace it
Directive 2004/38 – on rights of union citizens and their families
- this Directive applies to EU citizens only if they move to or reside in a MS other than
their own !!
Micheletti (1992) – conferral of nationality is an exclusive competence of MS and

recognition rules may vary form one MS to another
Janko Rottmann (2010) – when exercising competence with regard to the acquisition and
loss of nationality, MS must have due regard to EU law – here there was no breach of Union
law arising when MS authorities withdrew nationality from an individual who had obtained
that nationality by deception
Morson and Jhanjan (1982) – community law does not prohibit a MS from refusing to allow
a relative, of a worker employed within the territory of that State who has never exercised
the right to freedom of movement within the Community to enter or reside within its territory
if that worker has the nationality of that state and the relative the nationality of a non-member
country = Directive 2004/38 excludes the purely internal cases
WHICH FAMILY MEMBERS ARE COVERED?
Reed (1986) – spouse can mean either husband or wife, NOT a co-habiting partner
(registered partnership can have a status of family members but only where legislation in
the host MS recognises registered partnerships and only on the terms of the relevant
national legislation A.2(2)(b))
 now, A.3(2)(b) of the directive says that MS should facilitate the entry of a partner with
whom the EU citizen has a durable relationship, duly attested = MS must investigate the
relationship and must justify any refusal of entry or residence to partners
Singh (1992) – if a person has worked in another MS and then returned home, their family
members keep their EU law rights even after returning to the home state
Akrich (2003) - national of a non-EU state married to an EU citizen may reside in the citizen’s
state of origin where the citizen, after making use of their right to freedom of movement,
returns to their home country with their spouse in order to work, provided that the spouse
has lawfully resided in another MS
ABOLITION OF THE RESIDENCE PERMIT – EU migrants no longer must obtain a

residence permit in order to reside in another MS – the permit lies in the Treaty itself
Royer (1976) – failure by a national of a MS to comply with the formalities concerning the
entry, movement and residence of aliens is not of such a nature as to constitute in nitself
conduct threatening public policy and public security and cannot therefore justify a measure
ordering expulsion or temporary imprisonment for that purpose

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CONSEQUENCES OF DEATH, DEPARTURE, DIVORCE, END OF REG. PARTNERSHIP
A.12 - if EU citizen dies or leaves the host state, family members who are themselves EU
nationals do not lose the right to reside, nor do non-EU family members unless they have
been resident in the host state for less than a year
now the right to continued residence for both EU and non-EU family members depends on
their being workers or self-employed or fulfilling the sufficient resources requirement
(unless they have acquired the right of permanent residence)
A.13 is a new provision dealing with the consequences of divorce or termination of a
registered partnership – EU national family members can remain, whereas non-EU:
➢ the marriage or registered partnership has lasted at least 3 years, including one
year in the host Member State
➢ by agreement between the spouses or the partners or by court order, the
spouse or partner has custody of the Union citizen’s children
➢ it is warranted by particularly difficult circumstances, such as having been a
victim of domestic violence while the marriage or registered partnership was
subsisting
➢ by agreement between the spouses or partners or by court order, the spouse
or partner who is not a national of a Member State has the right of access to a
minor child, provided that the court has ruled that such access must be in the
host Member State, and for as long as is required
RIGHT OF PERMANENT RESIDENCE

- A.16 creates a new right of permanent residence once an EU citizen or family member
(EU or non-EU) has been lawfully resident in the host state for five years –
- continuity of residence is not lost by absences of up to 6 months in any one year or in
certain other circumstances such as studying abroad or travelling for medical reasons
- once the right of permanent residence has been acquired, it is no longer necessary to
establish that the person is a worker, self-employed or has sufficient own resources
- the right is lost only if the person is absent from the host state continuously for two
years
ASPECTS OF EU CITIZENSHIP – EXTENTION OF THE EQUAL TREATMENT
- A.18 TFEU prohibits discrimination in matters within the scope of EU law
- A.21 TFEU sets out the right of all citizens to move and reside freely within the territory
of the Union
- the latter Article functions in tandem with Article 45 TFEU on the free movement of
workers and extends the freedom of movement to the non-economically active
Martinez Sala (1998) – woman was allowed to stay in GER but was refused social benefits,
at a certain point, government must give her benefits

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PRIMARY CARERS – the citizenship concept began to have an impact on the rights of
residence of the non-economically active
Baumbast (2002) - the Court considered the situation of the mother who was the primary
carer for the children, who had been refused leave to remain in the UK because she was
married to an EU national who was no longer a migrant worker + the child’s primary carer
should be allowed to reside in the MS (A.8 ECHR!)
Zhu and Chen (2004) – a Chinese couple travelled to Northern Ireland to give birth to their
second baby to avoid the one child policy in China and also to gain Irish nationality for the
child – baby became an EU citizen  when parents were ordered to leave from England,
they relied on their daughter’s right of residence within the EU - regardless of motives of the
individuals concerned in travelling to Ireland, to deprive the mother of residence would be to
effectively deprive the child of its right to residence as provided under Article 21(1) TFEU
Ruiz Zambrano (2011) - the Court granted a right of residence to the Colombian parent of
an EU citizen in order to prevent the deprivation of the child’s enjoyment of the benefits of
citizenship – this judgment was later on criticized for being way too generous
Dereci (2011) – 5 non-EU family members wished to reside with their Austrian family
member - Court stated that such a criterion refers only to situations in which the Union citizen
has to leave not only the territory of the MS but also the territory of the Union as a whole,
Court ignored possible infringement of right to respect for private and family life, as it simply
left the issue of whether the current situation fell within the scope of EU law
McCarthy (2011) – UK/Irish national was in receipt of state benefits, she later married a
Jamaican who could not stay in UK – Directive 2004/38 is not applicable to a Union citizen
who has never exercised their right of free movement, who has always resided in a MS of
which they are a national and who is also a national of another MS – A.21 is not applicable
provided that the situation of that citizen does not include the application of measures by a
MS that would have the effect of depriving them of genuine enjoyment of their EU citizenship
RIGHT TO EDUCATION
- the Court has increasingly demonstrated a desire to create a single market for
education within the Union under the basis of Union Citizenship
Grzelczyk (2001) – a student applied for a minimex to support him through two last years of
college, MS should have allowed the student the benefits – it is not automatic but refusals
must be justified and proportionate
D’Hoop (2002) – Belgian national attending school in France – she was denied
unemployment benefit, she was not a worker but education is within the Treaty and she was
exercising her right to free movement so she is not to be discriminated in access to benefits
Bidar (2005) – provision requiring students to be settled in the host MS for purposes of
obtaining a student loan was incompatible with A.18
Jacqualine Förster (2008) – requirement of a genuine link with the society of the MS could
be understood as necessitating residency for 5 years before a grant is paid to assist with
studies

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EU HUMAN RIGHTS
A.6 (1) TEU – Charter of Fundamental Rights constitutes is a basic principles of law
A.6 (2) TEU – EU will accede to the ECHR
A.6 (3) TEU – fundamental rights guaranteed by the ECHR and as they result from
constitutional traditions common to the MS shall constitute general principles of EU law
A.7 TEU – mechanism for sanctioning EU MS who violate the principles in A.6 in a grave
and persistent manner
Stauder (1969) – cheap butter for pensioners was not held to be a fundamental right being
violated, nevertheless the Court recognised fundamental rights as a general principle of
Union law
Internationale Handelsgesellschaft (1970) – Court did not find a violation of a fundamental

right of economic liberty being violated, nevertheless the Court recognised fundamental
rights as a general principle of Union law
SOURCES
Nold (1974) – two primary sources for the general principles of EU law are:
1. common constitutional traditions
2. international human rights agreements
common constitutional traditions:

Hauer (1979) – right to make use of one’s property (to plant vines on her land) was weighed
against the Community interest (aim to avoid overproduction of wine) and was held not to
be violated since she had many other ways to deal with her land which are not prohibited by
EU law which was drawn upon collectively by MS and their traditions
AM&S Europe (1982) – lawyer-client confidentiality was not accepted by France and some
other states, nonetheless the Court upheld the principle and stated that it is prepared to
recognise a particular right on the basis of common national traditions in several (not
necessarily all) MS
Omega (2004) – it was immaterial whether a fundamental human right had its source in a
national constitution or the Union legal order as a general principle of law, since EU law
would protect such a right whatever its source
international human rights agreements:

Defrenne v Sabena (1978) – European Social Charter
Acme Industry (1999) – International Covenant on Civil and Political Rights
EP v Council (2006) – International Convention on the Rights of the Child

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CHALLENGES TO EU LEGISLATION
Bosphorus (1996) – legality of EU regulation which implemented UN-mandated sanctions

against the former Yugoslavia under which a Yugoslav aircraft was seized – according to
the Court, fundamental interests of the international community were a reason sufficient
enough to justify such restriction on the property or trade rights
Kadi (2008) – Bosphorus judgment was confirmed in the initial stage of the case here which
involved freezing o assets by EU Reg implementing a UN Security Council resolution,
however, on appeal Court held that obligations imposed by an int’l agreement cannot
prejudice the general principle that EU must respect fundamental rights and consequently
the Court annulled the EU regulation since it infringed the right to defence and the right to
effective judicial protection
 Kadi (2013) – UN provided reasons majority of which provided

sufficiently justifying grounds for their decision and which provided
rights of defence and of judicial review but the restrictive EU
measures were annulled since these reasons were not provided
with evidence
competition law challenges

Archer Daniels Midland (2006) – right to defence
Baustahlgewebe (1998) – right to a fair hearing
Dansk Rorindustri (2005) – principle of non-retroactivity
CHALLENGES TO MEMBER STATE LEGISLATION
MS are bound by general principles of EU law in the following circumstances:
1. When MS is applying national provisions of EU legislation which are based on

protection for human rights
Rutili (1975) – French measures restricting Mr Rutili’s movement in France had
to be examined as to their compliance with EU law setting out limitations on right
of free movement of workers under A.45(3) TFEU
Österreichischer Rundfunk (2003) – ECHR rights to an effective remedy and
to privacy respectively were reflected in EU legislation and had to be interpreted
accordingly by the MS concerned
2. When MS is acting as an agent of the EU by implementing or enforcing EU

measures – MS are under an obligation to act and legislate in light of ECHR
Wachauf (1989) – to deprive a farmer of compensation in return or the fruits of
his labour would be incompatible with his fundamental rights
Lindqvist (2003) + EP v Council (2006) – discussion whether EU law violated
fundamental rights and general principles of EU law by providing MS discretion
in terms of their implementation measures

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3. When MS derogate from EU law on the grounds of e.g. public policy
Elliniki – when derogating, MS must adequately respect EU fundamental rights

and general principles
Familiapress (1997) – MS must respect EU fundamental rights and general

principles even when derogating on basis of public policy
Carpenter (2002) – where MS attempts to rely on a public policy or public

interest derogation to expel or to refuse a benefit to a migrant, MS must take
adequate account of the impact of their actions on the right to family life
protected by A.8 ECHR
Omega – Court upheld a derogation made on grounds on the protection of

human rights, restricting on the marketing of laser games in GER can be justified
on the grounds of the protection of human rights
Cinéthéque (1985) – Court held it had no power to examine the compatibility of

the ECHR with national law which concerned an area which falls within the
jurisdiction of the national legislator
Konstantinidis (1993) – Greek national’s name was transcribed from Greek to

German constituted discrimination – transcription rules were only to be regarded
as incompatible with A.49 on establishment in so far as its application would
cause a Greek national such a degree inconvenience as to interfere with his
freedom of establishment
Kremzow (1997) – a purely hypothetical prospect of exercising the right to the

free movement of persons does not establish sufficient connection with EU law
to justify the application of Union general principles
Maurin (1996) + Steffensen (2003) – case which demonstrates the differences

in treatment depending on whether the measure concerned falls inside or
outside the scope of EU law

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THE CHARTER OF FUNDAMENTAL RIGHTS
- EU set up a study group in 1999 to catalogue various fundamental rights from EU

Treaties, CJEU case law, ECHR and the Declaration on Fundamental Rights of the
EP 1989 - aim was to collect existing rights and to codify new ones
- Charter of Fundamental Rights was solemnly proclaimed at the Nice EC 2000
- Treaty of Lisbon incorporated the Charter into primary EU law and it has been binding
on EU institutions and national governments
A.6 TEU – Union recognises the rights, freedoms and principles set out in the Charter
of Fundamental Rights of the EU of 7th Dec 2000 which shall have the same legal
value as the Treaties
Vinkov (2012) – purely internal situations do not fall within the ambit of the Charter, nor do
fundamental rights issues arising in areas over which EU has no competence
Fransson (2013) – fundamental rights guaranteed in the legal order of the EU are applicable
in all situations governed by EU law, but not outside such situations…since the fundamental
rights guaranteed by the Charter must therefore be complied with where national legislation
falls within the scope of EU law, situations cannot exist which are covered in that way by EU
law without those fundamental rights being applicable  applicability of EU law entails
applicability of the fundamental rights guaranteed
Melloni (2013) – there was a conflict between the fundamental rights guaranteed by the
Spanish Constitution and the European Arrest Warrant – although national authorities
and courts remain free to apply national standards of protection of fundamental rights, level
of protection provided for by the Charter (and the primacy, unity and effectiveness of EU
law) cannot be compromised
Kücükdeveci (2010) – Court has made a number of judgments citing or referring to the
Charter, in this case Court cited A.21(1) of the Charter prohibiting discrimination on grounds
of inter alia age
Volker und Markus Schecke (2010) – CJEU upheld fundamental right of data protection
by invalidating part of an EU measure which required the publication of the names of
recipients of funds from the European Agricultural Guarantee Fund
Scarlet v SABAM (2010) – obliging an internet service provider to install a filtering system
in order to prevent the infringement of intellectual property rights would violate the right of
the provider’s customers to the protection of their personal data
Chakroun (2010) – national legislation which imposes certain requirements on the amount
of financial resources available to third-country nationals who wish to obtain a residence
permit for their spouse was prohibited under the EU Directive
DEB (2010) – national legislation refusing legal aid to persons in the absence of a public
interest violated the right to an effective remedy – A.47 must be interpreted as meaning that
it is not impossible for legal persons to rely on the principle and that aid granted pursuant to
that principle may cover, inter alia, the costs of legal advice or representation

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EP v Council (2013) – Court annulled a Council decision on surveillance of the external EU

sea borders since the measure was likely to affect personal freedoms and fundamental rights
to such an extent that the involvement of the EU law was required
Italian Republic v Commission (2013) – Court annulled notices of several open

competitions to become a civil servant of the EU on the basis that they have been published
only in three official languages violating the A.21 clause - non-discrimination
A. 1 – right to human dignity

- Brüstle (2011) – patenting of human embryos through patented cloning
- CIMADE (2013) – obligation on MS to guarantee minimum conditions for
reception of asylum seekers
A. 15 and A.16 – freedom to choose an occupation and freedom to conduct business
A. 18 – right to asylum – Hasan (2010)
A. 24 – right of the child – Jasna Deticek (2009), Aguire Zarraga (2010)
A. 28 – right to strike – Laval (2007)
A. 32 – right to social and housing assistance – Kamberaj (2012)
A. 34 – right to access documents – My Travel Group (2011), Bavarian Lager (2010)
EU AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Nold (1974) – two primary sources for the general principles of EU law are:
1. common constitutional traditions
2. international human rights agreements – including ECHR
Rutili (1975) – CJEU held that various rights invoked by the applicant and contained in
express provisions of Union secondary legislation were specific manifestations of more
general principles enshrined in the ECHR
Elliniki, Kremzow (1997) – Court referred to the special significance of the ECHR
Johnston (1986) – A.6 and 13 ECHR requirement of judicial control reflected a general
principle of law common to the MS, equal treatment Directive had to be interpreted in the
light of the general principle
 same goes for sex discrimination – P v S (1996), Coote (1998)

 same goes for data protection and privacy – Rechnungshof (2003)
Hoechst (1989) – A invoked various human rights principles, such as that protected under
A.8 ECHR, but argued their application to their business premises  Court found that there
had been no such breach by the Commission – judgment criticized
X Niemietz (1993) – it was explicitly stated that A.8 applies to encompass business premises
– this ruling was later reflected in the CJEU’s ruling in Roquette Fréres

Eu Law Case List

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EU LAW CASE LIST

EU law (University of London)

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EU LAW CASE LIST

THE TREATIES AND THEIR SIGNIFICANCE

THE INSTITUTIONS OF THE EUROPEAN UNION

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DECISION ADDRESSED TO ANOTHER PERSON:

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DECISION IN FORM OF REGULATIONS (regulatory acts):

TEST 1: THE GENERAL APPLICATION / ABSTRACT TERMINOLOGY TEST

TEST 2: CLOSED CATEGORY TEST

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GENERAL PRINCIPLES OF EU LAW

i. it is clear and precise

Azienda Agricola (2001) – provision must be sufficiently clear and precise to be

Tachographs (1979) – MS cannot apply incomplete or selective manner

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DECISIONS – both vertical and horizontal effect

DIRECTIVES – only vertical direct effect

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REAL EFFECTIVENESS AND DETERRENCE

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PROCEDURAL PROTECTION AFTER THE LISBON TREATY

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Francovich (1991) – case concerned a total failure of Italian authorities to transpose a

1. the Directive must be intended to confer rights on individuals

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FREE MOVEMENT OF GOODS

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CHARGES FOR INSPECTIONS MANDATORY UNDER EU LAW

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Humblot (1987) – in indirect discrimination, it is necessary to prove that there is a

Commission v Belgium (1987) – if the breach is of A110(2) – competing products: it is

Kupferberg (1982) – even where provisions on non-discriminatory taxation have been

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ARTICLE 34-36 – QUANTITATIVE RESTRICTIONS

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PROTECTION OF HEALTH AND LIFE OF HUMANS, ANIMALS AND PLANTS

Commission v Netherlands (2004) – proper application of precautionary principle:

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INDISTINCLY APPLICABLE MEASURES

1. the rule in Q applies equally to domestic products

MANDATORY REQUIREMENTS DOCTRINE – additional list of grounds on which MS can

PROTECTION OF THE ENVIRONMENT

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SERVICES AND ESTABLISHMENT

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FREEDOM TO RECEIVE A SERVICE

SERVICES THAT MOVE, WHERE THE PROVIDER AND RECIPIENT DO NOT

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ARTICLE 57 TEU = ARTICLE 60 TFEU