Law of the European Union 2023 Case Law Weeks 1-7 | Quizlet

Van Gend en Loos

To determine whether a provision of EU law has direct effect, 3 criteria must be met.

a. The provision must be clear.

No vague terminology, the object of the provision is clear without further clarification by either EU or national bodies.

The provision must be unconditional.

No further implementation under EU/national law

No discretion of the member state (ex. In accordance with

the principles of the national law of the member states)

c. The provision must be able to procure a direct effect on the legal relationship between the state and individual.

Titanium Dioxide I

A choice of measure cannot be dependant solely on an institution's convictions but on objective factors amenable to judicial review and those factors include in particular the aim and content of the measure

Tobacco Advertising I

In order to render article 114 TFEU applicable, the measure:

Must be genuinely concerned with the improvement of conditions and the functioning of the internal market

Costa v ENEL

The relationship between national and Community law is governed by the principle of supremacy.

· National law may never prevail over community law.

Simmenthal

When Community law conflicts with national law

The conflicting provision of national law is automatically inapplicable if the provision of EU law has direct effect and is directly applicable

Van Duyn

Article 48 EEC Treaty is directly applicable and thus has direct effect

Azienda

Provisions of a regulation while directly applicable and not requiring implementation by member states, may sometimes require such implementation. In such an event, individuals may not derive rights until implementation has occurred

Munoz

For the purpose of applying common quality standards across the union, compliance with provisions in the regulation must be capable of enforcement by means of civil proceedings between individuals.

Grad

Individuals affected by the decision may invoke the obligations imposed by a decision before national courts.

Must be ascertained whether the nature, background and wording of the provision in question are capable of producing direct effects in the legal relationships between the addressee of the act and third parties

Marshall

Where provisions of a directive appear to be unconditional and sufficiently precise they have direct effect only if:

- The MS has failed to implement in time.

- The MS has improperly implemented the directive.

A directive is only binding upon each member state to which it is addressed and therefore may not itself impose obligations on an individual and thus cannot be relied on against an individual

Kolpinghuis

Prohibition of inverse direct effect when: a directive cannot independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons in violation of the directive.

Member states can therefore not benefit from their own failure to implement a directive.

Faccini Dori

Limit to indirect Effect - indirect effect cannot be contra legem

State Liability where damage is caused by failure to transpose a directive

i. the purpose of the directive must be to grant rights to individuals.

ii. it must be possible to identify the content of those rights on the basis of the provisions of the directive.

iii. Finally, there must be a causal link between the breach of the State's obligation and the damage suffered.

Adeneler

Duty to consistent interpretation arises only after the implementation deadline

Dansk Industri

Direct (vertical and horizontal) Effect of General Principles and the Charter

While directives cannot be invoked against individuals, general principles can

How to remedy conflict between national law and EU law?

i. First check if the conflict can be remedied through indirect effect

ii. IF not, then direct effect of general principle and duty to disapply national law

Brasserie du Pecheur

State liability may be invoked for any damage caused to individuals as a result of breaches of EU law

In order for this to be the case: 3 conditions must be fulfilled

a. Sufficiently serious breach of EU law by Member State

b. Breached provision of EU law aims to grant rights to individuals.

c. Causal link between breach and damages

Cassis de Dijon

Principle of Mutual Recognition

A member state must allow a product lawfully produced and marketed in another member state into its own market, unless a prohibition of this product is justified by mandatory requirements, such as health and safety protection.

Statistical Levy

Mere presence of a restricting Effect

Customs duties are prohibited because any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier constitutes an obstacle to the movement of such goods.

Dassonville

MEQR (Measure equivalent to a quantitive restriction) defined:

Any trading rule capable of hindering, directly or indirectly, actually or potentially, intracommunity trade

Humblot

Indirect Discrimination by way of taxation

Tax upon cars which could not have been produced in the home member state which is unreasonably higher constituting a barrier of trade to cars imported from other member states

Outokumpu

Prohibition of direct discrimination

Green energy cannot be taxed more favourably than coal energy

Beer and Wine

Obstacles to free movement of competing goods

While not entirely similar, also not entirely dissimilar so a less favourable tax upon wine constitutes an obstacle to the free movement of goods in breach of article 110 TFEU

Krantz

Limitations to definition of MEE's in Dassonville

A measure which is too uncertain and indirect cannot be considered a measure having equivalent effect

Keck and Mithouard

Measures restricting or prohibiting certain selling arrangements are not MEE's within the meaning of Dassonville

So long as they apply to all traders and do not discriminate against foreign products (indistinctly applicable)

Familiapress

Distinction between selling arrangements and product requirements

Measures which bear on the actual content of the good cannot be considered selling arrangements in the meaning of Keck

Gourmet International

Discriminatory selling arrangements

Swedish ban on promoting alcoholic beverages in magazines not sold at point of sale of beverage, was a selling arrangement that constituted an MEE as it favoured domestic products.

Italian Trailers

Restrictions on use of products are equivalent to MEE's

Restrictions on the use of goods, do not constitute product requirements nor selling arrangements but constitute MEE's as prohibitions on the use of products in the territory of an MS will influence the behaviour of consumers

Conegate

Justification on the basis of Article 36 TFEU: Public morality

Lawrie - Blum

Definition of a worker

1. Settled in a member state

2. Working under direction of someone else

3. Receiving remuneration

Levin

What is work: An occupation which is effective and genuine and not merely marginal and ancillary

Antonissen

Rights to job seekers moving to another MS - As long as they have a reasonable chance to find employment and remain in the host state for a reasonable time

Saunders

Article 45(2) cannot be applied to situations which are wholly internal to a member state

Bosman

Transfer Sum Rule - non-discriminatory measures

transfer fee, although applied indistinctly impeded free movement of workers and breached Art 45 TFEU.

Could be justified by pressing public interest but only if not going beyond what is necessary to achieve the objective.

3+2 Rule - Indirectly discriminatory

Rule treated EU nationals differently based on nationality and did not allow for equal opportunities to all EU workers. Did not restrict directly a member state but indistinctly applied while indirectly benefitting nationals of host MS

Angonese

Regulation in a collective manner

Private bodies regulation in a collective manner rules which restrict the free movement of workers fall under the scope of article 45 TFEU

Adoui and Cornuaille

Under the justification of proportionality

No arbitrary discrimination against foreigners

Not allowed to expel foreigners for practices which would not lead to consequences for nationals

Gebhard

Establishment - Stable and continuous basis

Justifications

National rules that hinder exercise of fundamental freedoms must:

1-Be applied in non-discriminatory way

2-Be justified in general interest

3-Be suitable for attainment of their objective

4-Be proportionate to attaining objective

Alpine Investments (Services)

NO Keck exception in freedom of services

Prohibition on cold calling is a non discriminatory measure restricting free movement of services

Vlassopoulou (Establishment)

National measures even when applied indistinctly requiring qualifications may have the effect of limiting the exercise of freedom of establishment

Viking Line (Establishment)

Balancing the right to strike against freedom of establishment

- This right cannot be enacted as such to have an effect of limiting the exercise of freedom of establishment

Article 49 TFEU applies also to private bodies regulating in a collective manner

Daily Mail (Establishment)

Real seat theory vs Incorporation theory

The treaty recognises the differences between national legislation considering the two theories and this is not a matter to be dealt with but at the national level

Centros (Establishment)

Refusal to register a company which has its registrative office in another MS constitutes an obstacle to the exercise of the freedom of establishment.

The determining law is left to the home state and real seat theory is not that important

Visser Vastgoed (Establishment)

Chapter III of the directive is also applicable in wholly internal situations

Luisi and Carbone (Services)

Article 56 also includes the rights of recipients of services to travel to other member states without being obstructed

Sager (Services)

Non discriminatory rules which are liable to prohibit or impede activities of a service provider constitute a restriction to freedom of services

Morbistar (Services)

Exception to broad restrictions: National measures whose only effect is to create indistinctly applicable additional costs do not fall within scope of Article 56

Laval (Services)

Right to strike, while fundametnal is subject to limitations unless justified and thus falls in scope of restrictions under article 56

Why?

Actions by union are: Liable to make it less attractive, or more difficult to provide services in Sweden

Micheletti

Nationality is decided by MS of which nationality is claimed

Rottmann

Not contrary to EU law for a Member State to withdraw nationality obtained by deception, even if it results in losing EU citizenship, so long as the decision observes the principle of proportionality

Zhu and Chen

- Extended residence rights to a family member not covered by Directive 2004/38

- ECJ ruled that daughter (non-Union citizen) born in EU was a citizen of MS and therefore EU citizen - had right to reside indefinitely.

- Confirmed that Article 21 TFEU confers important rights on citizens of EU and can extend benefit to non-EU citizens

Coman

Existence of impedement to free movement

If impediment to free movement, MS must objectively justify this restriction based on an overriding reason in the public interest

Mutual Recognition

No requirement to recognize same sex marriage by Romania but must accept that it is lawful in another member state

Dano

Lawful residence is an absolute precondition to equal treatment

Grzelczyck

Member states should have a certain degree of financial solidarity with foreign national students but may require a certain level of integration before providing assistance

O and B

Derivative right based on article 21 TFEU

When an EU national has a family member who is not an EU national and when the EU national wishes to return to his home state, the family member has a derived right of residence.

Court applies directive by analogy in that if the union citizen in the host MS has formed a relationship which is sufficiently genuine, a derived right of residence exists

International Handelsgesellschaft

Fundamental rights form an integral part of general principles of EU law protected by the CJEU and which is derived from the constitutional traditions common to the Member States

Kukudeveci

Horizontal direct effect of directive provisions on the basis that they comply with general principles of EU law.

Conflicting national provisions must therefore be disapplied

Akerberg Fransson

Charter always applies to EU institutions

Charter only applies upon Member States when they are applying EU law

Melloni

Requirement of Member states to have mutual trust in the judicial and police systems in other MS's

Execution of EAW's without requiring stronger protection in the other member state

Otherwise undermines principle of primacy of EU law

L.M. (and Aranyosi and Caldararu)

Systematic Deficiencies not sufficient to rebut principle of mutual trust

Two step test for "exceptional circumstances to rebut mutual trust"

1. Is there a real risk of inhumane treatment due to deficiencies in Art 3 ECHR/ Art 4 CFR?

Are there substantial grounds to suggest the individual will be exposed to such risk

ERT

Any derogation from fundamental freedoms of the Union must be in conformity with fundamental rights

Hofner & Elser

Definition of an "undertaking" = entity engaged in an economic activity, regardless of legal status of the entity & the way in which it is financed.

Eurocontrol

The exercise of public authority cannot be considered to fall under the concept of undertaking and does not fall under the scope of EU law.

Bayer

Agreement - Any concurrence of wills between at least two parties irrelevant of the form and only of the common intention of the parties

Consten and Grundig

a. Vertical agreements

Competition rules apply not only to horizontal agreements but also to vertical agreements.

b. Exclusive distribution

Absolute territorial protection shall be in violation of article 101 TFEU and automatically void

Anic

Concerted Practice - Coordination without agreement

3 elements

1. Undertakings "concerting together"

2. Subsequent parallel conduct on the market

Causal link between 1 and 2

Imperial Chemical Industries

Parallel Behaviour itself does not constitute concerted practice, but it does represent strong evidence thereof.

Societe Technique Minieres

Actions must have an effect on trade

Restriction by Effect

If an agreement does mot restrict competition that would otherwise have existed anyway, does not fall under scope of article 101

An agreement does not restrict competition if it is necessary for the penetration of a new market

Cartes Bancaires

Distinction between restriction to competition by effect or by object

By Effect: Necessary to prove that some types of collusive behaviour do have negative effects

By Object: Inherently negative effects on competition, no chance for justification

Remia and Nutricia

Non-compete clause de jure restricts competition.

De facto, is necessary for the agreement of transfer of undertaking to be given effect

Ancillary Restraints Doctrine: : Agreement is collateral in the sense that it serves to make the main transaction more effective

Delimitis

Restriction by Effect: IF market is inaccessible to new entrants because of several minor agreements, this might be in violation of article 101(1)

2 step test for Exclusive Purchasing

- Assessment of exclusionary effects of several small exclusivity agreements

Only if the several agreements restricts market access for new brewers the agreement has an appreciable exclusionary effect

Ruiz Zambrano

Parents have a derived right of residence under article 20 TFEU to care for dependent children even when the right of movement has not been previously exercised

Parliament v Council (Pirates II)

Parliament must be immediately and fully informed at all times during discussions on matters of CFSP

Intermediate results must be shared

Publication of results in OJ is not enough

Al Qaeda Sanctions

Art 215 may in fact constitute a legal basis for sanctions to combat terrorism

Dual legal basis is not possible where the procedures are incompatible

Kadi and Al Barakaat International Foundation v Council

EU obligation to implement UNSC resolutions may not infringe charter provisions

Charter prevails over every other obligation

Union based firmly on rule of law

Russia Today

Limitations to fundamental right (Art 11) by sanctions subject to specific conditions

Rosneft

Jurisdiction of court to issue preliminary rulings in matters of CFSP:

CFSP is an integral part of EU law, judicial protection prevails and is not different to any other area of EU law

Carve out to jurisdiction of the court should be interpreted strictly

Bank Refah Karagaran

Action for damages including in jurisdiction of court as result of sanctions

Narrow interpretation of court's carve out

Right to effective remedy = access to effective judicial protection in EU law

Opinion of AG Jacobs in Case 120/94

Measures irrespective of their purpose, which affect trade between states non-member states, fall within the scope of the CFSP

Opinion 1/75

EU exclusive competence as a necessary implication of EU internal market integration

MS interests cannot be satisfied separately to the union as a whole

Opinion 1/94

Scope of CCP not concerning goods

agreements like this cannot be concluded on basis of CCP alone because CCP only concerns trade in goods and services

Daiichi Sankyo

WTO agreements dealing with IP rights fall under article 207(1) where they have a specific link to international trade

Kazakhstan

If a measure has multiple aims, consider predominant aim and merely incidental one

Voting procedure of predominant aim is to be used

Singapore

Delineation between exclusive CCP competences and shared CFSP competences. Where an agreement consists of various aspects, both member states and union appear as contracting parties

Commission v Luxembourg and Belgium

Article 258 TFEU: Breach of EU law by one institution/member state cannot justify a breach by the other

Commission v Belgium

Article 260: Internal political issues are not relevant in a failure to correct breach/conflict of EU law

Dorsch Consult

Relevant factors for admissibility of court referring under article 267 TFEU:

- Established by law

- Permanent nature

- Compulsory jurisdiction

- Independence

Da Costa

Already answered questions are admissible but CJEU will refer to judgement

CILFIT

Limitations to obligation to refer of last instance court

- Act eclair doctrine: CJEU has already ruled on materially similar question

- Acte clair doctrine: Answer to question is so clear that court can decide itself

Manfredi

National Procedural Laws subject to limitations

Principle of Equivalence

Principle of Effectiveness

Factortame

National rule preventing interim relief impairs full effectiveness of EU law and breaches principle of effectiveness

Portuguese Judges

Limits to national Procedural Autonomy may be assessed by CJEU falling within competence of art 19 by way of its inclusion in art 47 CFR

Brasserie du Pecheur (again)

For state liability:

1. the breach must be sufficiently serious

2. there must be a direct causal link between breach and damage

3. the law must confer rights.

Dillenkofer

Failure to take any measures to implement a Directive is sufficiently serious.

British Telecommunications

Incorrect implementation of a Directive but not "sufficiently serious" → excusable misinterpretati (Directive not precise, good faith, same mistake in other Member States, not contrary to the wording of the Directive, no guidance from Commission)

Kobler

State liability may apply to any institution within member states regardless of judiciary, executive, or legislature

Plaumann

Legal standing conditions for non-privelaged person under art 263(4) regarding direct and individual concern)

Individual Concern: The act affects the person by reason of certain peculiar attributes or by reason of circumstances in which the person is differentiated from all other persons

Inuit Tapiriit Kanatami

Regulatory act = act which is not a legislative act (e.g. delegated or implanting act)

Microban

egal standing conditions for non-privelaged person under art 263(4) regarding direct and individual concern)

Direct concern: Act directly affects legal situation of the person and leaves no discretion to implementing institutions

Telefonica v Commission

Implementation may lie with EU institutions.

Implementation may lie with member states

United Kingdom v Council

All EU institutions when drafting measure must respect proportionality

Although EU institutions have wide degree of discretion, this is limited by:

- Manifestly exceeding limits

- Manifest errors or abuse of power

Foto-Frost

National court cannot declare a piece of EU law invalid but must instead refer for preliminary ruling when in doubt

Bergaderm

Conditions for liability for breach of EU law by union institution

- Breach of rule intended to confer individual rights

- Sufficiently serious

- Causal link between breach and damage