public law- semester two EU law

Germany v Parliament & Council (Case 376/98) — Tobacco Advertising Directive

• Art. 95 EC cannot confer a general power to regulate the internal market — measures must genuinely improve its functioning

• Mere disparity in national rules or abstract risk of obstacles is not enough to invoke Art. 95

• Distortions of competition must be appreciable — smallest distortions would make EC powers unlimited

• Blanket advertising ban struck down; some targeted bans (e.g. sports events) might be valid

BAT & Imperial Tobacco (Case C-491/01)

• Individuals may plead invalidity of EU law before national courts without the measure being transposed

• Preliminary reference under Art. 234 EC applies regardless of whether the act is directly applicable

• Challenging via national court is not "circumventing" Art. 230 EC — a genuine dispute is sufficient

Vodafone v SoS (Case C-58/08) — Roaming Charges

• Legislature has broad discretion in areas of complex political, economic and social choice

• Test: not whether the measure is the best or only option, but whether it is manifestly inappropriate

• Retail and wholesale roaming charges are interdependent — intervention at retail level was legitimate

Swedish Match (Case C-210/03) — Snus Ban

• Art. 95 is available to prevent future obstacles to trade from diverging national laws, if that emergence is likely

• Public health being a decisive factor does not prevent recourse to Art. 95 if conditions are otherwise met

• At time of directive there were already discrepancies in national rules on snus — future obstacles were likely

Czech Republic v Parliament (Case C-482/17) — Firearms Directive

• Proportionality requires measures to be suitable and not go beyond what is necessary; broad legislative discretion applies

• Impact assessments are not mandatory in every case; omission does not breach proportionality if legislature had sufficient information

• Commission relied on evaluations, studies, public consultations and stakeholder input — this was sufficient

Solange I (1974) — Internationale Handelsgesellschaft

• EU law cannot be judged by reference to national constitutional rights

• However, an "analogous guarantee" inherent in Community law may be checked

• Fundamental rights form an integral part of the general principles of EU law, inspired by constitutional traditions common to Member States

• Deposit system did not infringe those fundamental rights

Solange II (1987) — Re Wünsche Handelsgesellschaft

• Departure from Solange I — the Federal Constitutional Court accepted ECJ rulings as binding and final in Germany

• Authority of the ECJ in Germany accepted so long as ECJ rulings conformed to principles of German national law

Brunner v EU Treaty (1994)

• Ratification of the Maastricht Treaty was compatible with the German constitution

• German courts retained power to review the scope of Community competence

• EC laws apply in Germany by virtue of Germany's consent — incompatible fundamental rights provisions would not be applied

Frontini v Ministero delle Finanze (1974)

• Art. 189 EEC (regulations directly applicable) did not overstep Italian sovereignty

• Italy did not surrender freedom — it acquired powers in new international bodies (right to appoint representatives, participate in Commission and ECJ)

Simmenthal 

‘Every national court must , in a case within its jurisdiction , apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it , whether prior or subsequent to the Community rule’ (para 21). 

Thus: supremacy applies over national law preceding and postdating the EU law at issue. 

Overrides implied repeal. Parliament is sovereign and cannot bind its successors- Parliamentary sovereignty. 

Factortame (Case C-213/89)

• National courts have a duty to grant interim relief to protect Community rights even against conflicting domestic law

• An Act of Parliament was disapplied by UK courts for the first time in constitutional history

• Supremacy of EU law over Acts of Parliament reaffirmed

Polish Constitutional Tribunal (Cases P 7/20 & K 3/21)

• Polish Constitutional Tribunal declared Arts 1, 4(3) and 19(1) TEU wholly or partly incompatible with the Polish Constitution

• Commission v Poland (C-448/23): Polish Constitutional Court infringed fundamental EU law principles and was not an independent or impartial tribunal due to irregular judicial appointments

Van Gend en Loos

• Treaty provisions have direct effect — individuals may rely on them in national courts

• A provision must be clear, precise, and unconditional to have direct effect

• Dutch customs reclassification breached Art. 12 (now Art. 30 TFEU)

Costa v ENEL

• Italian Constitutional Court had applied lex posterior — ECJ rejected this

• Treaty provisions on the single market lacked direct effect here (only Commission could bring proceedings)

• National courts are nonetheless obligated to hear and refer cases concerning EU law up to the highest domestic appeal level

Dassonville (Case 8/74)

• Belgian certificate-of-origin requirement for Scotch whisky imports = measure having equivalent effect to a quantitative restriction

• Breached Art. 34 TFEU

Cassis de Dijon (Case 120/78)

• German minimum alcohol content requirement = unlawful obstacle to free movement

• Established mutual recognition: goods lawfully produced and sold in one Member State should be freely sold in all others

• Restrictions need objective justification; public health and fair trading arguments failed here

Keck & Mithouard (Cases C-267/91 & C-268/91)

• French prohibition on loss-leading did not breach Art. 28

• National rules on selling arrangements do not contravene Art. 28 if they apply to all traders equally and affect domestic and imported products in the same way

Commission v Italy — Trailers (Case C-110/05)

• Italian ban on motorcycles towing trailers could have equivalent effect to a quantitative restriction

• Justified by road safety — legitimate aim, appropriate and necessary

• Member State need not prove no other conceivable measure could achieve the same objective

Mickelsson (Case C-142/05)

• Swedish watercraft use restrictions had equivalent effect to Art. 34 quantitative restriction

• Could be justified on health, wildlife and environmental grounds — national court to assess whether conditions satisfied

LIBRO (Case C-531/07)

• Austrian law allowing trade associations to fix book prices restricted free movement of goods

• Provided less favourable treatment for imported books — illegal under EU law

ANETT (Case C-456/10)

• National prohibition on tobacco retailers importing from other Member States = quantitative restriction on imports

• Violated Art. 34 TFEU — measures must be appropriate and least restrictive to achieve their objective

Lipton v BA City Flyer (2021)

• Pilot illness = extraordinary circumstances defence for cancelled flight under EU261

• Flights operated before 31 Dec 2020 (IPCD) governed by EU261 as it stood before Brexit transposition, not UK261

CG Fry & Son v SoS

• Regulation 63 of the Habitats Regulations can require Appropriate Assessment at later stages (reserved matters, discharge of conditions) for European sites

• Ramsar protection via national policy (NPPF) alone cannot override the legal effect of an outline planning permission at the discharge stage

TuneIn v Warner Music

• TuneIn's hyperlink service to unlicensed foreign radio stations = communication to the public in the UK — infringement

• Court declined to depart from CJEU case law: "communication to the public" derives from international treaties — harmonious interpretation strongly preferred

• No basis to find CJEU approach was impeding development of the law or producing unjust results

Industrial Cleaning v Intelligent Cleaning (2023)

• Court diverged from CJEU case law on the trademark acquiescence defence

• EU law no longer aligned with domestic legislative intent — departure justified

Thatchers Cider v Aldi (2025)

• First instance found low similarity — Court of Appeal held Trade Mark scope was construed too narrowly

• Aldi's packaging closely resembled Thatchers'; resemblance "cannot be coincidental" (email evidence confirmed Thatchers used as benchmark)

• Aldi infringed under s.10(3) TMA 1994 — unfair advantage of the Trade Mark

Foundational principles of the EU

• Art. 1 — Establishes the European Union; declares an "ever closer union among the peoples of Europe"

• Art. 2 — Values of the EU: human dignity, freedom, democracy, equality, rule of law, human rights

• Art. 3 — Objectives of the EU: peace, the single market, sustainable development, etc.

• Art. 4 — Member states' sovereignty and obligations; principle of sincere cooperation

• Art. 5 — Principles of conferral, subsidiarity and proportionality (limits on EU powers)

• Art. 6 — Binds the EU to the Charter of Fundamental Rights and the ECHR

Free movement of goods provisions

• Art. 28 — Customs union; prohibition on customs duties between Member States

• Art. 30 — Prohibition on customs duties and charges of equivalent effect

• Art. 34 — Prohibition on quantitative restrictions on imports and equivalent measures (Dassonville, Cassis)

• Art. 35 — Same prohibition on exports

• Art. 36 — Exceptions to Arts. 34–35: public morality, public policy, public security, health, protection of artistic/industrial property

Free movement of persons provisions

• Art. 45 — Free movement of workers

• Art. 49 — Freedom of establishment (self-employed and companies)

• Art. 56 — Freedom to provide services

• Art. 63 — Free movement of capital and payments

Internal market provisions

• Art. 114 — Main legal basis for internal market harmonisation legislation (formerly Art. 95 EC — the article at issue in Germany v Parliament, Vodafone, Swedish Match, etc.)

• Art. 115 — Approximation of laws directly affecting the internal market (requires unanimity)

Institutional and legislative provisions

• Art. 258 — Commission can bring infringement proceedings against a Member State

• Art. 260 — Penalties for Member States failing to comply with CJEU judgments

• Art. 263 — Judicial review of EU acts (annulment actions — formerly Art. 230 EC)

• Art. 267 — Preliminary reference procedure (national courts refer EU law questions to the CJEU — formerly Art. 234 EC)

• Art. 288 — Legal acts of the EU: regulations, directives, decisions, recommendations, opinions

• Art. 340 — Non-contractual liability of the EU (Francovich-style damages)

• Art. 352 — Flexibility clause; EU can act where treaties don't provide the necessary powers but action is needed to meet treaty objectives

Conferral

The EU can only act within the competences that member states have conferred upon it through treaties. 

Subsidiarity

States that the EU should only act when objectives cannot be sufficiently achieved by member states alone, ensuring decisions are made closely as possible to citizens

Proportionality

Ensured that actions taken by EU institutions do not exceed what is necessary to achieve their objectives, balancing effectiveness with individual rights.

Direct Effect

Allow individuals to invoke EU law in national courts, ensuring that EU law is recognised and enforced by the public administration of member states. This was established by the CJEU in various cases.

Vertical direct effect

Individuals can invoke a provision of EU law in relation to the state.

Horizontal direct effect

Individual can invoke a provision of EU law in relation to another individual. Condition was laid down, in Van Gend, that the obligations must be precise, clear, and unconditional and that they must call for additional measures, either national or European. 

Indirect Effect

Requires national legislation in a manner consistent with EU directives and regulations, even when the EU laws of not have direct effect. 

Francovich state liability

1. The result prescribed by the directive should entail the granting of rights to individuals.

2. The contents of those rights must be identified on the basis of the provisions of that directive.

3. There must be a direct causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties.