Escolar Documentos
Profissional Documentos
Cultura Documentos
AN INTRODUCTION TO THE
LAW AND INSTITUTIONS OF
THE EUROPEAN UNION
DENISE ASHMORE LL.M.
STEVE TERRETT PhD
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BOOK 1
© University of Cambridge 2009
All rights reserved. No reproduction copy or transmission of this publication may be made without written permission.
Published by
University of Cambridge Institute of Continuing Education
Madingley Hall
Madingley
Cambridge CB3 8AQ
England
The University of Cambridge, Institute of Continuing Education is pleased to acknowledge the assistance, support and guidance of
the Foreign and Commonwealth Office (Know How Fund) in this project.
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WORK BOOK 2
The Courts of the European Community/Union.
An Introduction to the English
AAIIM MSS
Aims
&
&
oobbjjeeccttiivveess To describe the composition and functions of the Courts of the EC/EU and to consider
the role of the European Court of Justice in the development of the law and constitution
of the European Community.
.
Objectives
Contents
Unit 1
The Courts of the EC/EU (composition and powers).
Questions for Discussion
C
COON
NTTE
ENNT
TSS
Unit 2
Supremacy of Community Law
Unit 3
Direct Effect
Indirect Effect /Sympathetic Interpretation
Remedies/ State Liability
Questions for Discussion
Unit 4
Article 234 EC Treaty (Preliminary Ruling procedure)
Questions for Discussion
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We will begin this workbook with a look at the other 2 Community courts and in order
to avoid repetition, when these courts exhibit features which are identical to the ECJ, this
will be noted and a more detailed discussion of those features will follow in the section
which discusses the ECJ itself.
The Community courts are, of course, mentioned and regulated to some degree by the
Treaties. Nevertheless, much of the organisation of the various courts comes not from
the Treaties but from their own Rules of Procedure and, where this is the case it will
be indicated (e.g. CFI Rules, Article 29). Detailed discussion of the rules of Procedure is
outside the scope of this workbook. In addition certain of the relevant articles will be
revised upon the entry into force of the draft EU constitution. Where appropriate this
has been indicated in the text.
Composition
The CoA is composed of one member from each Member State, who is appointed by
common accord of the Member States after having consulting Parliament. They have
staggered 6 yearly appointments, meaning that half of them retire every three years,
unless of course they are re-appointed. Judges of the CoA must belong (or have
belonged) to an external audit body of a Member State or be ‘especially qualified’ for office.
Their independence must be ‘beyond doubt’ and they must be ‘completely independent in the
performance of their duties’.
A CoA judge may be removed by an ECJ decision that he ‘no longer fulfils the requisite
conditions or meets the obligations arising from his office.’
Functions
Its aim is to ensure sound financial management of the EC and it possesses more
supervisory and review procedures than truly judicial functions. It has issued a number of
critical reports about the way finance is run in the EC. One of these reports played an
important role in highlighting the financial irregularities which existed in the Santer
Commission.
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The ToA increased the powers of the CoA by adding it to the list of applicants who
could bring an annulment action under Article 230, similar to the European Central Bank
and Parliament. Such annulment actions will be looked at in Workbook 3.
It has no direct legal powers and relies on other bodies such as the European Anti-Fraud
office to deal with fraud or any irregularities it discovers.
The initial reason for the CFI’s creation was the growing case-load of the ECJ, which
was becoming over-burdened and taking longer to decide cases, as the following table
indicates.
As we all know, ‘justice delayed is justice denied’ and the CFI played an important role in
relieving the work-load of the ECJ. Another factor development designed to relieve the
ECJ’s work-load was the growing use of ‘chambers’ (see later).
The CFI has been of great assistance in complex factual cases (e.g. staff and competition
cases), which would otherwise have to be decided by the ECJ.
Composition
The CFI is composed of 27 judges and the requirements for appointment are the same
as for appointment to the ECJ. There are no permanent Advocate-Generals (see later)
but any CFI judge may be asked to act as Advocate-General, ‘whenever the legal or factual
difficulty of the case requires’ (Article 29[1] of the CFI’s Rules). Chambers are commonly
used.
Function(s)
The CFI was originally empowered to hear any direct action (that is an action which
starts and finishes at Community level, rather than national court level, and involves a
challenge to EC action/inaction) brought by a natural/legal person (known as non-
privileged applicants). It was not originally allowed to hear claims brought by
Community institutions or Member States (known as privileged applicants). This was
changed under the TEU, however, and the CFI was given competence to hear direct
actions, regardless of the status of the claimant. Nevertheless, before such competence
could be exercised, approval of the Council of Ministers was required and, at the time of
writing this workbook, no such approval has been given and no cases brought by
Member States or EC institutions have been heard before the CFI.
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This could cause problems, since it means that the same issue could be raised before
both the CFI and ECJ by different parties, but at the same time. In such circumstances,
either the ECJ or CFI can ‘stay’ (i.e. pause) proceedings (Article 82 ECJ Rules of Procedure)
but this is not always an adequate solution. If the CFI stays proceedings which involve an
individual, that claimant can’t intervene in the proceedings which are continuing at the
ECJ. Furthermore, since the CFI’s findings of fact are not binding, if the ECJ decided to
stay proceedings, it would have to subsequently establish facts in the case before it and it
may not reach the same factual conclusion.
(E.g. are advertisements encouraging people to ‘Buy the Best of British Food’ a restriction on
the free movement of goods? See Meat and Livestock Commission v Manchester
Meat and Poultry Market Ltd [1997] CMLR 361.)
The ability to ‘stay’ proceedings under Article 82a may be of some practical benefit to the
applicant but it also denies them the right to have their case heard by both courts.
The CFI’s suggestions to give it jurisdiction to hear cases regardless of the status of
applicant were supported by the ECJ only after some initial hesitation. Nevertheless, the
ECJ has argued against the CFI having jurisdiction to give Article 234 preliminary
rulings on Community law, for the guidance of national courts. Given that Article 234
references comprise over 50% of cases, it may be thought that there is a conflict between
the desire of the ECJ to reduce its own work-load and speed-up judicial decision-making
in the Community, on the one hand, and its desire to retain certain areas of judicial
competence for itself alone, on the other hand.
The proposal in the draft Constitution to give the power to hear preliminary references is
also contained in the Lisbon Treaty in cases which will be defined in the Statute of the
ECJ (Article III-358(3)), as is the renaming of the court to the General Court to be given
appellate jurisdiction over any newly created specialist courts if there is the proposed
restructuring of the present court system.
The existence of 2 courts within the EC system clearly raises questions about whether
the CFI is bound by its own precedent or that of the ECJ. In terms of the first question,
the CFI is not formally bound by its own previous judgments but endeavours to follow
them in order to ensure consistency in its case-law. In terms of the influence of the ECJ’s
jurisprudence, the CFI has stated that
“...the CFI is bound by the jurisprudence of the ECJ, first, in the circumstances laid down in the second
paragraph of Article 54 of the Statute of the ECJ [i.e. where an appeal against a CFI decision has been
made and the ECJ has allowed the appeal] and, secondly, pursuant to the principle of res judicata. It is
settled case-law that this can be the case only if the proceedings were between the same parties, had the
same purpose and were based on the same submissions as the present case...these conditions being
necessarily cumulative.”
The creation of the CFI has not entirely eased concerns about the time taken to resolve
cases in the ECJ, as can be seen by the table below, showing the length of time taken by
the ECJ to give judgment on the various types of cases. As the EU has enlarged the
number of cases has also significantly increased and so recent reforms in procedure, the
greater use of chambers (see later) and the addition of new judges have also been
important elements in ensuring that cases are dealt with as efficiently as possible.
In 2007 for example the ECJ had some 580 cases brought before it of which 265 were
preliminary rulings and 221 direct actions, which is an increase on the figure in 2005
where there were 474 new cases.
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Equally, the length of time taken for the CFI to resolve disputes, and the number of
pending cases before the CFI has begun to cause concern. The ECJ and CFI drew-up a
report entitled ‘The Future of the Judicial System of the European Union’ in 1999, including
recommendations to appoint more CFI judges, to allow single CFI judges to decide
cases, to limit the national courts which could make preliminary ruling requests and to
require ECJ approval for any appeal from a CFI decision, but most of these
recommendations remain unimplemented, although the findings have clearly influenced
the reforms proposed in the Lisbon Treaty.
Decisions of the CFI are subject to appeal to the ECJ, on a point of law, within 2
months from the date of the original decision.
The Lisbon Treaty will rename this court the General. It retains broadly the same areas
of competence including the possibility of dealing with preliminary rulings in defined
areas subject to the condition that if the General Court considers the ‘decision to be one that
may affect the unity or consistency of EU Union law’, then it may choose to refer the ruling to
the ECJ instead.. There will remain a right of appeal to the ECJ against decisions taken
by the General Court as well as a general right of review of decisions taken on appeal to
the General Court from one of the newly created specialized courts again in
circumstances of the need to ensure unity and consistency.
The latter are adopted by the ECJ itself, after having obtained the unanimous assent of
the Council of Ministers (Article 245). The ECJ has argued that the requirement of
unanimity could, in an enlarged EU, prevent necessary changes to the Rules of procedure
and has requested to be able to change these rules unilaterally however this would have
remained unchanged in the Draft Constitution (Article III-355).
Composition
The ECJ is composed of 27 Judges and 8 Advocate-Generals (A-G’s); this is now to be
increased to 11 Advocate Generals. Although the Treaty does not specifically state that
each Member State shall have a judge, in practice there is a judge from each of the 27
Member States.
Judges are appointed by ‘common accord’ of the Member States (Article 225). They must
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be people whose ‘independence is beyond doubt’ and must be either chosen from the highest
court of their State or be ‘jurisprudents of recognised competence’ (Article 223). The composition
of the ECJ has included members of the judiciary, civil service, advocates and academics.
Judges are appointed for 6 years but the terms are staggered and every 3 years, half are
renewed or reappointed. Re-election requires unanimity of all States, acting by ‘common
accord’. In practice all judges so far have been re-elected until they voluntarily chose to
retire. The former UK judge David Edwards, who retired in 2004 had been an ECJ
judge since 1992 and the UK judge in the Court of First Instance since 1982. The current
UK judge is a former Court of Appeal judge Konrad Schieman.
The judges then elect a president of the court, the most recent appointment being
Vassilios Skouris who was re-elected in 2006 to serve until October 2009.
The EP requested a role in appointing judges but it was felt that this might cause judges
to make comments during EP interviews on issues which they may later have to decide
in cases, which would compromise their impartiality. The EP accordingly retains no role.
The draft Lisbon Treaty would also herald some changes to the appointment structure
inserting a new Article 224A which will create a judicial panel to advise on new judicial
appointments proposed by the Member States. The 7 member panel would be made up
from amongst previous members of both courts, “members of supreme national courts and
lawyers of recognised competence, one of whom shall be proposed by the European Parliament”.
Article 222 describes the role of Advocate-Generals. They are required to make reasoned
submissions in open court with complete impartiality and independence. France,
Germany, Italy, Spain and the UK each have an A-G, with the remaining positions
rotated between the other Member States, the increase to 11 AG’s will also provide a
permanent AG for Poland.
Each judge and A-G has at least 3 referendaires who are legal secretaries performing
functions similar to the USA’s judicial clerks. They will research the case and present the
A-G with an opinion of their own which, whilst not binding, can often influence the
approach taken by the A-G.
Procedural Organisation
The ECJ sits either as a full, or plenary, court or as a Grand Chamber of 13 judges
(mainly comprising the president of the court and of the 5 judge chambers) or in
chambers (fewer judges deciding a case). Article 221 allows the ECJ to sit in chambers
and the Rules of the Court provide for extensive use of 3 and 5 judge chambers. A
Member State or institution (privileged applicants) bringing a case before the ECJ, or
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submitting written observations in a case other than a preliminary reference case may
request a Grand Council session with plenary sessions reserved for cases of exceptional
importance (Article 44 of Rules of Procedure) at the request of Member States.
Both the ECJ and the CFI have written and oral stages - in contrast with common-law
systems, the written stage is the most important in the ECJ. This is undoubtedly linked
to the fact that the original six Member States all had continental civil law systems.
Once a case is referred to the court, a preliminary report is prepared to decide whether a
hearing is needed, or whether the issue has already been dealt with in an earlier case and
whether an advocate general should be appointed. In the latter case once the parties have
submitted their written pleadings, the oral pleadings stage begins. Oral hearings adopt the
inquisitorial style, meaning that the judges are not limited to discussing what the
advocates put forward in argument but can also ask their own questions and raise their
own points. Following oral submissions, but before the judges begin their deliberations,
an A-G presents an impartial opinion on how he would decide the case. These opinions
are often far more detailed and full of reasoning than the actual court’s decision. The A-
G’s opinion is not binding on the judges but it is often followed, both in terms of result
and reasoning. Much of the ‘activism’ suggested of the court has come through the A-
G’s - Lord Slynn, Francis Jacobs etc. - and a number of A-G’s have gone on to become
ECJ judges.
Following the A-G’s opinion, a juge rapporteur is selected from the presiding judges,
whose role is to present a brief summary of the factual and legal questions in the case.
He will prepare a draft court judgment which will then be discussed by the court or
chamber.
All presiding judges are required to vote on the case and, if a unanimous decision is not
possible, decisions are taken by majority. All judges are required to sign the judgment,
however, and there is no provision for dissenting opinions/judgments.
Certain problems may be caused by difficulties between the judges in agreeing the
common wording of judgments, in the absence of a unanimous decision. In the ICI v
Commission (Dyestuffs) Case [1972] ECR, 619, the inability of the full court to reach
a unanimous decision and wording caused a delay of 6 months.
It is now common to see ‘standard clauses’ for ECJ judgments which are repeated at the
beginning of every case on that subject matter
It has been said that “...the collegiate nature of the court’s judgments lends them certain flatness, such
as we associate with the language of a Government report. The tone is measured; there is neither
excitement nor humour. One must not expect the often elegant, sometimes idiosyncratic, prose of an
English judgment, upon which the individual judge will have imprinted his own personality and
particular style.” (Brown and Jacob’s, The Court of Justice of the EC, 2000, at p.57).
The language used during the Court procedure will be determined by the parties to the
proceedings. However, the language used by the judges at session is French. Once
judgment is given, all judgments are translated into the EC’s other working languages.
Up until 2006 all applications and references were fully translated into all official
languages but since enlargement this has been seen as impractical leading to a greater
number of summaries being prepared instead.
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The ECJ does not have a formal system of precedent, but in practice it often follows its
earlier decisions in order to ensure consistency. Nevertheless, the ECJ has on occasions
overruled its previous case-law, although with varying degrees of transparency.
e.g. In CNL-Sucal v HAG (HAG 2) [1990] ECR 1 3711, the ECJ overruled its earlier
approach to the doctrine of ‘common origin’ for the purposes of EC intellectual
property law, taken from Van Zuylen v HAG (HAG 1) [1974] ECR 731. This was the
first time that an earlier case was expressly overruled.
E.g. In Keck and Mitthouard [1993] ECR1 6097, the ECJ appeared to overrule its
earlier case-law on free movement of goods, whilst saying merely that it had decided to
‘re-examine and clarify its case-law on this matter.’
ECJ judgments are generally short in length and often contain very little substantive
reasoning for the decision taken in the case. The judgment may refer to previous cases or
to the A-G’s opinion, but tend to do so only where they support the court’s decision and
not when some passages of the A-G’s opinion or other ECJ cases which may go against
the court’s reasoning.
The fact that EC legislation is published in twenty three, equally authoritative, languages
may give some explanation for this approach.
Some point to the ECJ’s interpretative methods as one example of the ECJ’s activism,
whilst others note that use of such sources of inspiration is well established in
international law.
Article 32 - “Recourse may be had to supplementary means of interpretation, including the preparatory
work [travaux preparatoires] of the treaty and the circumstances of its conclusion…”
John Major, a former UK Prime Minister, famously proposed that the ECJ was ‘a political
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rather than a judicial institution’ and argued that its judgments should be capable of being
overruled by the Council of Ministers. Francis Jacobs (A-G from the UK) has argued
that the option of being non-activist was not available to the ECJ and that only the UK
has a problem with it because it is unfamiliar with the constitutional-court type structure
which was created under the original treaties.
Functions
The ECJ is the primary judicial institution of the Community, but one must remember
that its jurisdiction in respect of the other 2 pillars of the Union is not identical to its
jurisdiction under the EC pillar.
TEU Article 46 excludes the majority of TEU provisions from the ECJ’s jurisdiction and
the ECJ has no jurisdiction at all under the CFSP pillar.
Nevertheless, all acts falling outside the scope of ECJ review are specified in Article 47
TEU to be unable to affect the existing acquis communitaire. Article 47 TEU is justiciable by
the ECJ.
In terms of the second pillar (PJCCM) Article 35 confers jurisdiction on the ECJ to
review both matters which have been transferred to the EC pillar and issues which
remain under the PJCCM pillar. This Article, however, only gives the ECJ jurisdiction on
such matters subject to agreement by the relevant Member State, and only upon a
reference from the ‘court of last instance’(Article 68 EC), in comparison with ‘any court
or tribunal’ which may make a reference under the EC preliminary reference procedure
(Article 234). Provisions on law and order and internal security are excluded from review.
The Lisbon Treat would extend the competence of the ECJ bringing all three pillars
within the court's jurisdiction. The new Articles broadly provide a role of interpretation
of the Constitution upon direct request by Member States, as well as a review of validity
of legislation upon Member State request within one month of implementation. Some of
the present limits are retained however so that the ECJ will continue to play no role in
assessing or reviewing police action under the former PJCCM pillar. It will however be
given a wider judicial review role bringing within its umbrella the actions of the
European Council as well as procedural review of any decision to expel Members States
(although it cannot review the substance of such a decision). It will introduce a speedy
procedure for references made concerning a person held in custody in the new
procedural rules contained in the Lisbon Treaty Functioning of the EU (LTFEU), whose
provisions will run side by side with the Article 234 procedure in the revised primary
treaty (LTEU). It will introduce a speedy procedure for references made concerning a
person held in custody in the new procedural rules contained in the Lisbon Treaty
Functioning of the EU (LTFEU), whose provisions will run side by side with the Article
234 procedure in the revised primary treaty (LTEU).
In terms of the ECJ’s role within the EC pillar, the Treaty is rather brief, stating simply
that...
“The court shall ensure that in the interpretation and application of this Treaty the law is observed.”
Article 220.
This rather vague Treaty Article has been used by the ECJ on a number of occasions,
however, to justify controversial judgments in which it created doctrines important to the
EC legal system. In Workbook 1 we saw how the ECJ used this Article to develop the
doctrine of general principles of Community law.
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A number of other Treaty Articles govern the role of the ECJ in hearing various types of
cases.
Preliminary rulings requested by a national court are governed by Article 234. The
preliminary rulings procedure will be looked at in Unit 4 of this workbook and the
remaining articles will be discussed in Workbook 3.
The Lisbon Treaty adopts the proposal for the creation of additional specialist courts. In
fact the first such of these has already been created by Council Decision 2004/752/EC
which sets up a new European Union Judicial Service Tribunal, whose initial panel of 7
judges have been given the task of resolving disputes arising from the staff of the civil
service of the European Union, with a right of appeal to the Court of First Instance. This
court was formally convened in December 2005, hearing its first case in March 2006.
The CFI
a) Do the Rules of the CFI require approval by any institution other than the ECJ?
b) Is there an appeal from the CFI to the ECJ and, if so, on what conditions?
c) In which ways is the jurisdiction of the CFI limited? Are such limitations
justifiable?
d) What are the advantages/ disadvantages of the ECJ’s stance in relation to the
jurisdiction of the CFI?
e) What/Who are the two categories of potential applicants before the CFI/ECJ? Is
it defensible to have different categories of applicant?
f) To what extent is the CFI bound by the jurisprudence of the ECJ?
The ECJ
g) Are there any potential criticisms of the way in which the judges of the CFI and
ECJ are appointed/reappointed?
h) What are the advantages/disadvantages of disallowing separate judgments or
dissenting opinions in the ECJ?
i) What are the advantages/disadvantages of not having a formal system of
precedent within the ECJ?
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j) Give examples where the ECJ appears to have deviated from its previous case-
law, other than those which are discussed in this workbook. (See Workbook 1
for other examples).
k) “There is a serious need to rethink the structure and organisation of the ECJ in light of its
increasing workload, perhaps even more crucially given the recent expansion eastwards.” To
what extent do you agree/disagree with this statement?
I. What will be the effect of the Lisbon Treaty upon the present procedure and
jurisdiction of the court?
II. Would the proposed changes in the method of appointment of judges have
added to the effectiveness of the court?
The doctrine of international legal supremacy has been found to exist in other
organisations and the ECJ was not the first court to rule that its own legal order was
supreme to the Member States’ systems. Nevertheless, the ECJ appears to have been
flexible in borrowing from traditional international law theory where useful to achieve its
aims and to have distanced the EC legal system from traditional law theory wherever the
latter ran contrary to its aims.
e.g. In Commission v Luxembourg and Belgium [1964] ECR 585 the ECJ rejected
the international law theory of ‘reciprocity’, which states that one Member of an
international organisation cannot bring an action against another Member State if both of
those States are in breach of the rules of the organisation. As we will see, the ECJ takes
the view that the EC/EU is a new legal order and this approach is visible in its
judgments.
The draft constitution would have put this issue beyond doubt by stating clearly that
supremacy lies with the EU (Art I-6), and this fact may well have affected the support
given to the draft document by the EU population.
‘The Constitution and law adopted by the Union’s Institutions in exercising competences conferred on it,
shall have primacy over the law of the Member States.’
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The ability for an individual to enforce certain EC law in their national court (see Direct
Effect later) would be virtually useless unless EC law was also found to be supreme to
national law, otherwise the EC law could be modified or overruled by inconsistent
national law. In a series of important judgments, the ECJ described how, in its view, EC
law was supreme to national law.
N. B. This judgment is a landmark decision by the ECJ, when one is aware that most of
the Member States intervened in the Van Gend case (as they are entitled to do under the
ECJ’s rules of procedure) and argued against the doctrine of supremacy and also against
the doctrine of direct effect, as indeed did the Advocate General who indicated that such
a view was unlikely to be accepted in the Member States.
The issue of supremacy did not take long to become the central issue in a case, however.
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The court undeterred by the lack of a clear statement in the Treaties referred to “the terms
and spirit of the Treaty” to justify its position. It went further in the following case, which
we shall consider once again to consider the view of the national court concerned.
In Germany the court was concerned as to the level of protection of Human Rights
which they were obliged to protect under their constitution. The ECJ was clear that this
would not affect the status of European Community law.
Internationale Handgesellschaft mbH v Einfuhr [1970] ECR 1125
“Recourse to legal rules of concepts of national law in order to judge the validity of measures adopted by
the Community’s institutions would have an adverse effect on the uniformity and efficacy of EC law. In
fact, the law stemming from the Treaty, an independent source of law cannot by its very nature be
overridden by rules of national law, however framed, without being deprived of its character as
Community law and without the legal basis of the Community itself being called into question. Therefore,
the validity of a Community measure...cannot be affected by allegations that it runs counter to either
fundamental rights as formulated by the constitution of that State or the principles of a national
constitutional structure.”
In the following case the ECJ advised the national referring court how to deal with
conflicting national law
This means that, where national law runs contrary to EC law, yet that national law
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contains remedies which may be used to enforce Community rights, the national rule
may be held valid insofar as those remedies but not as respects the provisions which
contradict EC law.
In Larsy [2001] ECR I 5063 it was confirmed that this would apply equally to
administrative agencies in Member States.
In emphasising that rights must be exercisable in practice, the ECJ made it clear that
appropriate remedies must also be available nationally, whether or not these remedies
would be available in national law.
R v Secretary of State for Transport (ex parte Factortame Ltd.) [1990] ECR 2433
The UK’s Merchant Shipping Act 1988 prevented Spanish fishermen using any of the UK’s
allocated EC shipping-quota under the Common Fisheries Policy. It prevented the
registration of Spanish ships as English vessels, if such vessels were owned by a UK Co.
where less than 75% of the shares were owned by UK residents. This Act was challenged
as contrary to EC law by UK companies which had large Spanish shareholdings. The
companies also requested the suspension of the Act of Parliament until such time as the
ECJ had ruled on whether the Act breached EC law. The trial judge assumed that he had
the power to suspend the UK Act on the prima facie case of the plaintiffs but Court of
Appeal ruled that was against the UK constitution (with its doctrine of Parliamentary
supremacy). The House of Lords, however, agreed with the trial judge that the plaintiffs
would suffer irreparable harm unless interim relief was granted. It referred the issue to
the ECJ under the Article 234 procedure and asked whether a court such as itself, which
was bound by constitutional theory to uphold the supremacy of national legislation, had
the power under Community law to suspend the operation of one of its national statutes
until it was decided whether that statute was itself in breach of Community law. The ECJ
ruled that:
“...the full effectiveness of EC law would be impaired if a national rule could prevent a court seized of a
dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of
the judgment. It follows that a court which in those circumstances would grant interim relief if it were not
for a rule of national law is obliged to set aside that rule…”
(a) Germany
As one of the founding Member States of the ECSC, Euratom and the EEC, it is
implicit, at least, in the reasoning of the ECJ that these States knew and intended to
create the type of legal system described by the ECJ in cases such as Costa v ENEL.
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Although Germany’s constitutional capacity to join the EEC was never in doubt, the
German constitutional court expressed concerns over the absence of human-rights and
fundamental freedoms in the EEC Treaty. If EC law were supreme, and could override
the German constitution’s human-rights provisions, this could leave the German court
unable to enforce its role as protector of human-rights.
As may be seen from Workbook 1, the response of the ECJ to this threat to Recognition
of the supremacy doctrine was to develop the concept of general principles of
Community law as well as to deny the view by re-stating firmly that supremacy
remained with the EC.
Following this development, the German court changed its approach (in a case known as
Solange II).
The German court seemingly wished to remind the EC that, as regards sovereign powers
which had not been specifically ceded to the Community, the German courts retained
competency. There was a concern as to what was called ‘creeping competence’.
In a number of more recent decisions in the 1990’s involving the Banana Regulations,
the attitude of the national courts seemed to be moving against the concept of
supremacy where it clearly negatively affected German national rights. However the
more recent decision of Alcan [2000] seems to indicate renewed acceptance of the
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principle of supremacy so far as the level of human rights protection available in the
European Union remains high.
However as with France there is a concern as to how far supremacy can be extended to
cover Directives (Re A Rehabilitation Centre [1992] Unit 4)
b) Italy
c) France
France has a two-prong judicial system, with two supreme courts. The highest ordinary
court, Cour de Cassation, accepted the supremacy of Community Law in 1975. The
supreme administrative court, Conseil d’Etat, continued to reject supremacy until 1989.
It reasoned that it had not been given the jurisdiction to review the validity of French
legislation. Therefore it could not
1) find the legislation incompatible with Community law; nor could it
2) afford priority to EC law.
Finally in Raoul Georges Nicolo [1990] 1 CMLR 1734 2 French citizens sought the
annulment of the European Parliament elections in 1989, it accepted, somewhat
unwillingly, the idea of supremacy. It expressed its concern about supranationality linked
with the purported law making activity of the judges, therefore its judgment cannot be
described as one of unqualified approval but rather an acceptance that it was the ‘odd man
out’.
It remains unprepared to accept that this principle can be extended beyond the
application of Treaty Articles and Regulations and has not accepted the Direct Effect of
Directives (Cohn Bendit [ 1980] see Unit 4)
d) Belgium
Another one of the founding Member States, this country had no provision as to
supremacy in its constitution, however it accepted very early on that the EC Treaty was a
higher legal norm and should be accorded supremacy (LeSki [1972] CMLR 330)
e) United Kingdom
The UK was not an EC Member State at the time of the Van Gend and Costa v ENEL
rulings. Furthermore, since the UK has an unwritten constitution, it may be thought that
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membership of the EC would cause less constitutional problems than in the States
considered above. Nevertheless, the fact that the UK is a dualist system (i.e. requiring
national legislation to implement international legal commitments) and the constitutional
principle of Parliamentary Supremacy (see English Legal System, Workbook 1)
caused heated discussion over the relationship between EC law and UK law.
Briefly put, the Parliamentary Sovereignty principle states that one Parliament cannot
bind its successors, so any legislation containing provisions that are contrary to earlier
statutes is deemed to have impliedly repealed the earlier law. This means that, even when
the UK joined the EC and enacted the European Communities Act 1972,
incorporating the Treaties as part of UK national law, this could be impliedly repealed by
a subsequent statute which was contrary to EC law.
Of course, the idea that the UK’s Community obligations could be repealed by a
subsequent national statute runs completely counter to the notion of EC supremacy, yet
the idea that the 1972 Act could bind subsequent Parliaments seems to run counter to
the notion of Parliamentary supremacy.
For a while, English judges seemed reluctant to accept the notion that Parliament could
have ceded its supremacy to the EC. Nevertheless, a cautious acknowledgement of this
came in the following case.
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by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments
are based on a misconception. If the supremacy within the European Community of Community law over
the national law of member states was not always inherent in the EEC Treaty it was certainly well
established in the jurisprudence of the Court of Justice long before the United Kingdom joined the
Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the
European Communities Act 1972 was entirely voluntary.’
Note: the legislation questioned in the case of Factortame was found to be incompatible
with the United Kingdom’s obligations under Community Law and lead to judgment
against them combined with a damages award of some 30 million pounds sterling.
The possible effect that this had on the constitutional question of Parliamentary
supremacy was dealt with in the case of R-v- Secretary of State for Foreign and
Commonwealth Affairs, ex parte Rees Mogg [1994] QBD 552 in which it was
confirmed that the general principle of Parliamentary supremacy remained unchallenged,
and that the agreement that Rees Mogg attempted to challenge, was not an abandonment or
transfer of prerogative powers, but an exercise of those powers.
A legal provision is said to be directly effective if it grants individual rights which must
be upheld by national courts. The first time that the Courts intimated the existence of
this Doctrine was in Case 26/62 N.V Algemene Transporten Expeditie
Onderneming van Gend en Loos -v- Nederlandse Administratie der Belastingen
[1963] ECR1 (ante)which stated that, in order to be directly effective, a provision must
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be:
A Treaty Provisions
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addition to the supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of
the Member States.
It follows from the foregoing considerations that, according to the spirit, the general scheme and the
wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual
rights which national courts must protect.”
As mentioned earlier, the fact that other EC Member States intervened to argue against
the possibility of supremacy and direct effect clearly demonstrated their concern at
possible future implications of the development of these doctrines.
However we should not forget that once the ECJ had declared EC law as supreme, the
original concept of direct effect rather involved a choice between two types of national
law albeit with different sources.
Which Treaty Articles would receive similar treatment from the Court?
The Van Gend en Loos case conferred a claim upon an individual exercisable against a
Member State, who, as a signatory to the EC Treaty, had agreed to be bound by its
terms. Claims between individuals relying upon the provisions of the Treaty could not
have the same basis as Van Gend en Loos. A distinction therefore needed to be drawn
between a claim made against a Member State and one that could be brought by one
individual against another.
The ECJ chose to distinguish between these types of claims by highlighting two types of
direct effect:
Vertical Direct Effect: EC rights which are enforceable by an individual against the
State.
Horizontal Direct Effect: EC rights which are enforced by one individual against a
non-State natural/legal person.
The possibility of Treaty Articles having vertical direct effect was established in Van
Gend. The following case answered the question of whether Treaty Articles could also
have horizontal direct effect.
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applicable and may thus give rise to individual rights which the court must protect.
It is also impossible to put forward arguments based on the fact that the Article 119 only refers expressly
to ‘Member States’. Indeed, as the Court has already found in other contexts, the fact that certain
provisions of the Treaty are formally addressed to the Member States does not prevent rights from being
conferred at the same time on any individual who has an interest in the performance of the duties thus
laid down.
The very wording of Article 119 shows that it imposes on States a duty to bring about a specific result to
be mandatorily achieved within a fixed period.
The effectiveness of this provision cannot be affected by the fact that the duty imposed by the Treaty has
not been discharged by certain Member States and that the joint institutions have not reacted sufficiently
energetically against this failure to act.
To accept the contrary view would be to risk raising the violation of the right to the status of a principle of
interpretation, a position the adoption of which would not be consistent with task assigned to the Court
by Article 164 of the Treaty.
Furthermore it is not possible to sustain any objection that the application by national courts of the
principle of equal pay would amount to modifying independent agreements concluded privately or in the
sphere of industrial relations such as individual contracts and collective labour agreements. In fact, since
Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies
not only to the action of public authorities, but also extends to all agreements which are intended to
regulate paid labour collectively, as well as to contracts between individuals.’
The United Kingdom and Ireland expressed strong concern at the financial implications
of this decision, whereupon the Court limited the potential retroactive effect of the
judgment, meaning that the judgment would only apply to those who had already begun
claims on the basis of Article 141 (ex 119).
The ECJ’s ruling that Treaty Articles satisfying the criteria for direct effect could be
enforced against both State and natural/legal persons was justified on the basis that
Member States had assumed certain obligations by signing the Treaty, some of which
included prohibiting certain behaviour by their nationals as well as government organs.
Furthermore, it could be argued that the Treaty had been published in each Member
State and, as a result, nationals in that State could be assumed to have knowledge of its
contents.
In 1983 in his Article The Doctrine of Direct Effect: An Infant Disease of the
Community’, P Pescatore said:
‘It appears that in the opinion of the Court, the Treaty has created a Community not only of States but
also of peoples and persons and that therefore not only Member States but also individuals must be
visualized as being subjects of Community law. This is the consequence of a democratic ideal, meaning
that in a Community as well as in a modern constitutional State, Governments may not say anymore
what they are used to doing in international law: L’Etat c’est moi. Far from it; the Community calls for
participation of everybody, with the result that private individuals are not only liable to burdens and
obligations, but that they have also prerogatives and rights which must be legally protected. It was thus a
highly political idea, drawn from a perception of the constitutional system of the Community, which is at
the basis of Van Gend en Loos and which continues to inspire the whole doctrine flowing from it.’
The ECJ has held that, even where Treaty Articles give an element of discretion by
requiring action to be taken only by a certain future date, this will not prevent those
provisions having direct effect once the period for implementation has expired, since the
discretion to act then becomes a duty to act.
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Equally, the ECJ has held that simply because a provision requires an ECJ interpretation
of its meaning does not mean that it fails to meet the criterion of clarity as required by
Van Gend.
The question whether the various types of secondary legislation could have direct effect
(and if so, what type) took slightly longer to be answered and it is useful here to recall the
different types of secondary legislation described in Article 249 EC. (See Workbook 1 for
discussion of the various types of secondary legislation).
B Regulations
Regulations are the only type of secondary legislation described in Article 249 EC as
‘directly applicable’.
Since Regulations are described in Article 249 as having “general application”, the ECJ held
that they were capable of both vertical and horizontal direct effect. However as
regulations do tend to have a more general application, the test of whether it creates clear
and unambiguous rights becomes very pertinent.
C Decisions
Case 9/70 Franz Grad -v- Finanzamt Traunstein [1970] ECR 825
In this case the Munich Finanzgericht referred a question regarding Council Decisions
on turnover taxes and whether they were capable of direct effect.
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The argument of the German government was that the Treaty only described
Regulations as ‘directly applicable’ and this meant that neither Decisions nor Directives
could have direct effect. The ECJ replied:
“...although it is true that by virtue of Article 189, regulations are directly applicable and therefore by
virtue of their nature capable of producing direct effects, it does not follow from this that other categories of
legal measures mentioned [ in Article 249] can never produce similar effects. In particular, the provision
according to which decisions are binding in their entirety on those to whom they are addressed enables the
question to be put whether the obligation created by the decision can only be invoked by the Community
institutions against the addressee or whether such a right may possibly be exercised by all those who have
an interest in the fulfillment of this obligation. It would be incompatible with the binding effect attributed
to decisions by Article 189 (now 249) to exclude in principle the possibility that persons affected may
invoke the obligation imposed by a decision. Particularly in cases, where for example, the Community
authorities by means of a decision have imposed an obligation on a Member State or all the Member
States to act in a certain way, the effectiveness (l’effet utile’) of such a measure would be weakened if the
nationals of the State could not invoke it in the courts and the national courts could not take it into
consideration as part of Community law. Although the effects of a decision may not be identical with
those of a provision contained in a regulation, this difference does not exclude the possibility that the end
result, namely the right of the individual to invoke the measure before the courts, may be the same as
that of a directly applicable provision of a regulation.’
Again a success for the individual both as a claimant but more importantly in extending
the effectiveness of European Community law!
Since Decisions only bind those to whom they are addressed, they may have either
vertical or horizontal direct effect depending upon whom is the addressee of the
particular Decision.
D Directives
A further difficulty arises as to availability of this law within the Member State national
system, particularly if it has not been implemented, returning us to the difficulties
experienced by some national courts in the question of supremacy.
The possibility of the extension of the doctrine of direct effect to Directives was first
considered in
Case 41/74 Van Duyn -v- Home Office [1974] ECR 1337
[In this case the ECJ was not only dealing with the provisions of a Treaty Article (as in
Defrenne), but needed additionally to consider the provisions of a related Directive.] Miss
Van Duyn, a Dutch national, was offered employment with the Church of Scientology in
England. This Church, although not illegal in UK, was considered socially harmful by the
British Government, so they refused her entry. The UK Government based their
argument upon the public policy exception contained in Article 39 EC Treaty (free
movement of workers). Miss Van Duyn challenged the Government’s decision by
arguing that Regulation 1612/68 and Directive 64/221 had limited the manner in which
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the British Government were entitled to rely upon this exception and further that both
the Regulation and the Directive were directly effective. The High Court referred the
question to the ECJ who agreed that the Directive was capable of being directly
effective.
However, the ECJ went on to say that, although the restriction contained in Article 3(1)
of Directive 64/221 reduced the scope of the public policy exception by requiring the
Member State to exercise its discretion on the basis of the particular individual’s personal
conduct, it did not prevent the Member State (in this case the UK Government) from
the exercise of a limited discretion.
The High Court decided that on these facts, the British Government had acted within
this limited discretion so Miss Van Duyn was not entitled to enter the UK.
In this case, the ECJ made a number of interesting statements indicating why directives
were also capable of having direct effect.
‘It would be incompatible with the binding effect attributed to a Directive by Article 189 to exclude, in
principle, the possibility that the obligation which it imposes may be invoked by those concerned. In
particular, where the Community authorities have, by Directive, imposed on Member States the
obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if
individuals were prevented from relying on it before their national courts and if the latter were prevented
from taking it into consideration as an element of Community Law by providing that measures taken on
grounds of public policy shall be based on the personal conduct of the individual concerned, Article 3(1) of
the Directive No. 64/221 is intended to limit the discretionary power which national laws generally
confer on the authorities responsible for the entry and expulsion of foreign nationals. First, the provision
lays down an obligation which is not subject to any exception or condition and which, by its very nature,
does not require the intervention of any act on the part either of the institutions of the Community or of
Member States. Secondly, because Member States are thereby obliged, in implementing a clause which
derogates from one of the fundamental principles of the Treaty in favour of individuals, not to take
account of factors extraneous to personal conduct, legal certainty for the persons concerned requires that
they should be able to rely on this obligation even though it has been laid down in a legislative act which
has no automatic direct effect in its entirety.’
Van Duyn involved vertical direct effect, since the action was against a Member State, but
the possibility of horizontal direct effect was considered in the following case. The
national courts accepted that a Member State who had agreed to the provisions of the
Directive should be estopped (prevented) from being able to use their failure to
implement the provision, within the implementation time stated in the Directive, to
defeat an individual’s claims to Community rights.
However, national courts and academics were concerned that allowing horizontal direct
effect could lead to individuals facing liabilities under Community Law on the basis of
legislation which had never been transposed into national law.
The national courts, started to make further references to the ECJ under Article 234 EC
Treaty to seek clarification. The ECJ, clearly sensitive to the need for co-operation from
the national courts, took note of these concerns when deciding whether directives were
capable of horizontal direct effect, but as we will see later, this did not lead the court to
discard the basis of view that individuals should be able benefit equally from EC law, and
this should not depend upon the Member State of their residence. .
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Discrimination Act 1975, concerning eligibility for state pension. She alleged that this
Act contravened the provisions of Council Directive 76/207 (Equal Treatment).
The ECJ followed the reasoning of Advocate-General Slynn and found that Directives
could be enforced against the State “regardless of the capacity in which the latter is acting, whether
employer or public authority.” Strictly speaking, this resolved the case since, on its facts, the
reference from the national court, had assumed that the employer was clearly an organ of
the State. Nevertheless, the ECJ also wished to deal with the issue of whether Directives
were also capable of horizontal direct effect and, having noted that Directives were
addressed only to “Member States” stated that
“...a Directive may not of itself impose obligations on an individual and a provision of a Directive may
not be relied upon as such against such a person.”
Having limited the possible direct effects of Directive to those of a vertical nature (apart
from the possible indirect effects of the CIA ruling considered below), we have to ask
what exactly is to be treated as ‘the State’ when seeking to enforce a Directive. It clearly
no longer means only the government and so widens the principle of estoppel applied
to date; the local health authority in Marshall clearly would have not been able to
implement the Directive itself.
In some circumstances it may be relatively easy to identify a State body: public health
authorities (Marshall above) and police forces (Johnston v RUC [1986] ECR 1651)
are clearly linked with State functions. Other examples may not be so clear-cut, however.
Whether the ECJ would itself apply these three tests so rigidly is unclear, but certainly in
the UK the national courts have followed the approach of Rolls Royce.
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applies equally to State and non-State bodies, this seemed to produce a similar result to
accepting the horizontal effect of Directives. A number of A-G opinions argued that the
inequalities caused by denying horizontal direct effect to Directives were worse than
accepting the applicability of the doctrine. The issue was raised once more in the
following case.
If we refer back to the original test from Van Gend and the tests of unconditionality
and discretion which prima facie seem to remain a problem when considering Directives,
it becomes clear that in applying the estoppel principle, the ECJ has treated the date of
implementation as a ‘cut off’ date. Once the ‘cut off’ date has passed, the aim of the
Directive, and corresponding rights claimed is of prime importance and the State can no
longer defend itself against potential liability.
This test however can still create some difficulties as can be seen from the two
contrasting cases of Pubblico Administero v Ratti [1979] ECR 1629 where a
defendant was not allowed to rely upon a Directive in conflict with national law, when
the date due for implementation had not yet passed. In contrast in Becker –v-
Finanzamt Munster Innenstadt [1982] ECR 53 the Member State had not
implemented EU law on the form of tax returns to be submitted, the claimant succeeded
in defending a prosecution against him on the basis that he used the EU form before the
implementation date.
Nevertheless, even before the expiry of the implementation period, a Member state may
not take actions which go against the aims of the Directive (Inter-Environment
Wallonie ASBL v Region Wallonie [1997] ECR I-7411.
Even if a State has implemented a Directive, it is still be possible for that Directive to
have direct effect and be relied on directly: Verbond van Nederlandse
Ondernemingen (VNO) v Inspecteur der Invoerrechten en Accijnzen [1977] ECR
113.
Some Directives also allow Member States to seek derogations from the full effect of the
provisions. However if the time limit for implementation has expired this does not
prevent the application of Direct Effect, even if no decision has yet been taken as to
whether to grant the derogation due to delay on the part of the Commission Kortas
(1999) ECRI-03143
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In the more recent case of Unilever Italia SpA-v- Central Food Spa [2000] ECR I
7535 the triangular effect achieved through this principle was considered again. This case
considered Italian national law concerning the geographical labeling of olive oil. Italy had
notified the Commission of the intended law, in accordance with EC requirements.
However as the EC were themselves considering legislation in this area, the Commission
required that no national law be implemented for a minimum period of 12 month. Italy,
however, implemented the law in breach of the Commission ruling. Central Food
therefore refused oil from Unilever which was not labeled in accordance with the Italian
national law. Unilever successfully argued that the law should be dis-applied as in breach
of EC law. Although this clearly would affect the private contractual position with
Central Food, the Court were more concerned at the breach of EC law and not the
effect it would have on a private contract. They reaffirmed that there was no horizontal
direct effect of Directives and saw no conflict in this case, as the provisions of the
Articles in question were not capable of direct effect in not seeking to create rights for
individuals.
So in giving judgment in the case, the Court dealt with the case as an entirely technical
breach and was not proposing the extension of horizontal direct effect, although in such
situations it is clear that private parties could be affected
In the case of Unibet (London) Ltd –v- Justitiekanslern [2007] C-432/05 the court
made no reference to this line of authority when faced with a claim for interim relief
against the State caused by its enforcement of national law provisions which were
allegedly in conflict with European Community law. In dealing with the consequent loss
caused to the claimant by the resulting cancellation of private contracts, the court
emphasized that EC law required that an independent cause of action should be available
to parties as a right of last resort where it was necessary to ensure that remedies for
breach of EC law should be both equivalent to and as effective as remedies available for
breaches of national law (this will be further considered in workbook 3).
E International Agreements
Direct effect has also been claimed in relation to areas of international law.
Association Agreements
The principle of direct effect could also be a useful vehicle for citizens who had entered
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into Association Agreements with the EU, as was found in relation to one of the earliest
Association agreements held with Turkey. This proved a fruitful source of litigation for
claimants, but the approach of the Court was rather to emphasise that such rights
emanated rather from decisions of the Association Council based upon the terms of the
Agreement rather than directly from the Agreement itself.
Recent cases in relation to the Polish and Czech Association agreements in cases such as
Aldona Jany & Others-v-Staatsecretaris van Justitie [2001] ECR I 8615 have
confirmed this general approach stating that”these provisions must be construed as
establishing… a precise and unconditional principle which is sufficiently operational
to be applied by a national court and which is therefore capable of governing the
legal position of individuals”.
The Court was clearly aware here of the practical difficulties in reciprocity which would
follow, in other signatory countries. A similar approach has been adopted with the WTO
and also the TRIPS agreement on intellectual property.
However the Court has been more prepared to accept the argument that standards set in
such international agreements which are then separately enacted in EU legislation could
be subject to direct effect. EU Rules based upon the Vienna Convention have been
found justiciable in the case of Racke GmbH –v- Hauptzollamt Mainz [1998] ECR I
3655.
a) Is there any difference between the terms “directly applicable” and “directly
effective”?
b) Give examples of Treaty Articles and pieces of secondary legislation which have
been found to have direct effect (other than those referred to in this workbook).
Against whom were they enforced and in which court were they relied upon?
c) Should all pieces of secondary legislation be directly effective? What are the
policy reasons for denying horizontal direct effect to certain pieces of secondary
legislation?
d) It has been said that “...the British courts’ approach to, and the outcome of, the enquiry as to
whether a particular body is an ‘emanation of the State’ for the purpose of enforcement of a
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Directive is unpredictable.” (per Steiner, J. and Woods, L., EC Law 7th Ed., 2000, at
61). Why might this be so? What factors do you think the courts take into
account in deciding this question? Provide some examples from your country of
bodies which would come within the Foster definition.
Having discussed direct effect as one option for an individual to enforce their EC rights,
let us now turn to some alternatives that the ECJ has developed.
Von Colson and Kamann -v- Land Nordrhein-Westfalen [1984] ECR 1891
Two unsuccessful applicants for the posts of social workers at a prison claimed that they
had been discriminated against on the grounds of their sex. They brought proceedings
against the prison, relying upon Directive 76/207 (Equal Treatment) purportedly already
implemented into German national law. In stating that the German code had
inadequately implemented this Directive, the ECJ relied upon the provisions of Article
10 EC Treaty (see earlier), indicating that the remedies provided by German national law
were insufficient to achieve the purpose of the Directive.
In this case, despite the fact that they were clear victims of discrimination, the German
code only allowed the applicants to claim their ‘reliance loss’, i.e. traveling expenses
incurred in attending the interview.
“Although, as has been stated in the reply to Question 1, full implementation of the directive does not
require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such
as to guarantee real and effective judicial protection. Moreover it must also have a real deterrent effect on
the employer.
It follows that where a Member State chooses to penalize the breach of the prohibition of discrimination
by the award of compensation, that compensation must in any event be adequate in relation to the damage
sustained.
In consequence it appears that national provisions limiting the right to compensation of persons who have
been discriminated against as regards access to employment to a purely nominal amount, such as, for
example, the reimbursement of expenses incurred by them in submitting their application would not
satisfy the requirements of an effective transposition of the directive.
However, the Member States’ obligation arising from a directive to achieve the result envisaged by the
directive and their duty under Article 5 (now 10) of the Treaty to take all appropriate measures, whether
general or particular, to ensure the fulfillment of that obligation, is binding on all the authorities of
Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the
national law and in particular the provisions of a national law specifically introduced in order to
implement Directive No 76/207, national courts are required to interpret their national law in the light
of the wording and the purpose of the directive in order to achieve the result referred to in the third
paragraph of Article 189.
On the other hand, as the above considerations show, the directive does not include any unconditional and
sufficiently precise obligation as regards sanctions for discrimination which, in the absence of implementing
measures adopted in good time may be relied on by individuals in order to obtain specific compensation
under the directive, where that is not provided for or permitted under national law.
It is for the national court to interpret and apply the legislation adopted for the implementation of the
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directive in conformity with the requirements of Community law, in so far as it is given discretion to do so
under national law.’
When it became clear that the national courts would not accept a further extension of
direct effect (particularly in respect of Directives), the ECJ responded by developing the
Von Colson ‘sympathetic interpretation’ doctrine.
Unit 2.An Introduction to the Law and Institutions of the European Union WOR
Yet again, the national courts showed some concern as to the extent of this doctrine. A
number of references were made by national courts requesting preliminary rulings from
the ECJ to clarify the following points.
Whether the doctrine would only apply when the wording of the national
provision was ambiguous?
Whether indirect effect would only have vertical effect (against the Member
State)?
Whether it could be applied only when there had been an inadequate attempt at
implementation (as in the Von Colson case)?
If not could it be applied before the expiry of the implementation date set out in
the Directive?
It is notable that this case enabled EC law to be used in a claim against a private
company, thereby achieving a similar result to horizontal direct effect of a Directive.
‘In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in
Case 14/83 Von Colson and Kamann -v- Land Norrhein-westfalen [1984] ECR 1981, paragraph
26, the Member States obligation arising from a directive to achieve the result envisaged by the directive
and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or
particular, to ensure that fulfilment of that obligation, is binding on all the authorities of Member States
including, for matters within their jurisdiction, the courts. It follows that, in applying national law,
whether the provisions in question were adopted before or after the directive, the national court called upon
to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the
directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph
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liability, but can impose obligations upon an individual in relation to civil liability.
An interesting line of case law was introduced by Pupino [2005] ECR I 5285 which
considered the effect of a Framework decision adopted pursuant to Article 34(2) EU and
which was stated as being ‘binding upon the Member States as to the result to be achieved… shall
leave to the national authorities the choice of form and method. It shall not entail direct effect’.
The factual issue concerned the treatment of victims of a crime and how the national
judge should interpret national provisions on the law of evidence. As we will see later in
Unit Four, there are limitations on the jurisdiction of the ECJ in relation to this pillar and
so there was an initial argument of inadmissibility put forward by intervening Member
States which was unsuccessful. The Court took the view that ‘the principle of conforming
interpretation’ was also binding for framework decisions and so that ‘the national court is
required to take into consideration all the rules of national law and to interpret them, as far as possible,
in the light of the wording and purpose of the Framework Decision’.
The principle of interpretation was revisited by the ECJ in Werner Mangold v Rüdiger
Helm [2005] ECR I 9981 where the Court were considering the effectiveness of Article
6(1) of Council Directive 2000/78/EC of 27 November 2000 which established a
general framework for equal treatment in employment. The Directive’s time for
implementation had not yet expired but the ECJ still took the view that ‘ It is the
responsibility of the national court to guarantee the full effectiveness of the general principle of non-
discrimination in respect of age, setting aside any provision of national law which may conflict with
Community law, even where the period prescribed for transposition of that directive has not yet expired’
1. Do you agree with the ECJ that the loyalty requirements of the Treaties act enable
intra-governmental decisions to also have an effect on interpretation of national law by a
national court when that decision is expressly stated not to have direct effect?
2. Has the Court entered a further period of ‘activism’ in cases such as Mangold and
Pupino? Is so can these decisions be justified in the present expanding EU?
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encourage the Member States to comply with their obligations under the Treaties. In the
following case, the ECJ allowed a claim for damages to be made against a Member State
(in this case Italy) who had failed to carry out its Community obligations.
There must be
the grant of a right in favour of the individual
It must be possible to identify those rights on the basis of the Directive (now
amended by the case of Factortame (post)
There must be a causal link between the breach of the State’s obligations and the
harm suffered.
The implications of this judgment for Member States were potentially considerable.
In the joined cases C 46 & 48/93 Brasserie du Pecheur -v- Germany and
Factortame -v- UK [1996] 2 WLR 506 the Court confirmed that the principle of
Member State liability would apply to breaches of all Community law, whether or not
Direct Effect applied. However, the Court agreed that liability should lie on a similar
basis to that applicable to the Community Institutions under Article 288 EC Treaty (non-
contractual liability claims against Community Institutions). Therefore if a Member State
was given choices or discretion, liability would only attach if there was a ‘sufficiently serious
breach’ of Community law which would be decided according to whether the Member
State or institution had ‘manifestly and gravely exceeded the limits of its discretion’.
The Court accordingly re-phrased the threshold test amending the second limb to state
They also set out a number of guidelines for national courts as to what would form a
sufficiently serious breach.
Clarity and precision of rule breached
Measure of discretion left in the hands of national or community authorities
Whether the infringement was intentional or involuntary, with the interpretation
of law use excusable or inexcusable
Whether the position taken by the Commission had contributed towards the
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omission
Was it the adoption or retention of national measures or practices contrary to
Community law
Whether there had been an earlier infringement established before the court and
yet the practice continued.
All these were factors that the national courts could use. Additionally the ECJ reiterated
the approach we have already seen in theVon Colson line of authority that community
remedies must be actually available in the Member States jurisdiction and must not be
barred in practice by national rules of procedure.
It was interesting that in later cases these factors seemed not to be crucial.
Two early decisions indicate the difficulties that were faced by both the Member States
and their national courts.
R-v- Ministry of Agriculture, Fisheries & Food ex parte Hedley Lomas (Ireland)
Ltd [1996]ECR I 2553
The UK prohibited exportation of live sheep to Spain on the complaints of animal-
welfare groups that Spanish slaughterhouses did not comply with an EC Directive
regulating the conditions for killing animals. The UK failed to adduce any evidence
(either of specific slaughterhouses or general practices) that Spain was in breach of the
Directive.
“where...the Member State in question was not called upon to make any legislative choices and had
considerably reduced, or even no, discretion, the mere infringement of EC law may be sufficient to
establish the existence of a sufficiently serious breach.”
This approach has been confirmed in two recent decisions of Reichberger and
Greindle –v- Austria [1999] ECR I 3499 and Norbrook Laboratories Ltd –v-
Ministry of Agriculture Fisheries and Food [1998] ECR I 1531 where the test of the
breach in the first case came down to the clarity and precision of provisions breached
but in the second was a case decided using the formula from Hedley Lomas.
On the one hand the court is concerned with the actual breach and the discretion of the
Member State concerned as in Dillenkoffer & Others –v- Federal Republic of
Germany [1996] ECR I 4845 when the Court found that the total failure by Germany
to implement a directive within the given time, would automatically fulfil the test of
sufficiently serious breach.
In other cases the Court has paid more attention to the clarity of the rule itself, and in
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cases such as Denkavit International -v- Bundesamt fur Finanzen [1996] has gone
so far as indicating to the national court who referred the question that the breach
claimed was not sufficiently serious for this reason.
Another part of the Francovich test has also been highlighted, as to whether the rule was
intended to give rights to individuals. In the two cases Three Rivers District Council –
v- Bank of England [1996] 3 All ER 558 and Bowden –v- South West Water
Services [1999] 3 CMLR 180 the English courts took the view that the relevant
banking and environmental directives were not intended to give individual rights and so
the claim failed on these ground, which has support from such cases as Verholen-v-
Sociale Verzekeringsbank Amsterdam [1991] ECR I 3757.
It is also important that the claimant can establish his loss or damage, as was emphasized
in Schmidberger –v- Austria [2003] ECR I 5659 where a transportation was delayed
by the closure of a motorway for 28 hours.
The Francovich principle will also apply to a breach by a public body as in Haim –v-
Kassenzahnartzliche Vereinigung Nordrhein [1994] ECR I 425 and interestingly in
the recent case of Kobler –v- Austria [2003]ECRI-10239 found that a court would be
capable of coming within the definition of a public body against which a breach could be
claimed. Although once again in Kobler the ECJ was at pains to state they did not think
there was a sufficiently serious breach on the facts of the case, which concerned equality
of treatment of an academic in an Austrian university, rather than leaving this as a
decision for the national court. (we will return to this issue when looking at Article 234 in
the next Unit).
This decision could in theory bring with it the possibility that a lower court would be
required to assess the capacity and competence of its highest court, where the act of the
highest court were to be the basis of a claim for State Liability.
SUMMARY
So, in brief, an individual when seeking to rely upon a rule of European Union law,
SSuum
mmmaarryy which is not available as a direct source of law within his national law system, has three
possible choices.
1. He can attempt to persuade his national court to rely directly upon the terms of
the European Union legislation, if the rule he wishes to use can satisfy the Van
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2. He can seek to find a similar rule in national law which is capable of being
interpreted to reach the same result as the European legislation Von Colson; or ;
3. He can seek to claim his remedy from the state or public authority that is
responsible for his loss if the test in Francovich can be satisfied.
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is to be fully understood.
When the founders of the European Community first drafted the Treaties, they
identified the role to be allocated to the Court of Justice.
It was
firstly; to resolve disputes between Member States, the Institutions and the employees of
the Community,
secondly; to ensure, through judicial review, that the institutions did not exceed their
power,
thirdly; to resolve disputes and claims made by external parties against the Community
and finally: (and essential to the judicial development of EC law), it would act as the final
interpreter of the provisions of Community Law (Article 220 EC Treaty ante).
In carrying out its function as interpreter, the Court’s relationship with the national
courts appeared to be a co-operative partnership. The national courts would
independently seek an interpretation from the court through the preliminary ruling
procedure in Article 234 and the reply of the ECJ would then enable the referring court
to apply Community law to the facts and thereby provide a resolution of the individual
case.
No enforcement mechanism existed to persuade any unwilling national court to refer a
question of interpretation to the ECJ (arguably Article 226 EC Treaty, see further
Workbook 3, may provide the necessary mechanism but no cases of its use are
recorded). The ECJ did not have any powers enabling it to fulfil the function of an
appeal court, so if the national court chose not to refer questions for interpretation by
the ECJ, the national court’s interpretation would remain applicable unquestioned in that
Member State.
Very early on, the ECJ recognised the importance of acquiring the trust and confidence
of the national courts. If it wanted to see EC law uniformly applied in all Member States,
its judgments had to be regarded as more than simply a response to one question.
Instead, the answer should be accepted by the national courts as declaratory of the law
and therefore be applied uniformly in all Member States.
To be able to make these authoritative statements, it was necessary for the national
courts to refer questions to the ECJ. The ECJ therefore needed to encourage the use of
Article 234 EC Treaty.
To achieve the aim of uniformity in the application of Community law in all Member
States, the national courts needed to be convinced that EC law had to be accepted as
superior to national law and to apply that principle domestically.
This Unit charts the progress of the acceptance of Supremacy of EC law and the
consequential limitations imposed by the national courts on the ECJ.
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This Article is of fundamental importance as it has been the vehicle for the establishment
of the Two Judicial Pillars of Direct Effect and Supremacy. As soon as the courts of
Member States began to use the referral provisions contained in Article 234 EC, the ECJ
was able to introduce and develop its two Judicial Pillars.
In this Unit we will be considering the mechanism used so successfully by the ECJ to
develop Community law.
Article 234(a) EC has been particularly relevant to the development of the judicial pillars,
so how is this used within the national court systems?
Unit 4.An Introduction to the Law and Institutions of the European Union WK
1. An individual, who wishes to rely on a principle of Community law, will sue in his
national court setting out in his pleadings (documents of claim) the relevant Community
principle on which he/she seeks to rely.
2. The national court can (this is obligatory if the national court is the last national
appeal court) then seek a ruling through Article 234 EC Treaty by referring a question of
interpretation to the ECJ.
3 The ECJ, in answering the question, will interpret the relevant provision of Community
law.
4. The national court will use the interpretation of Community law to resolve the issue
raised with reference to the particular facts of the case.
As mentioned earlier, Article 234 referrals played a vital role in giving the ECJ an
opportunity to develop the doctrines of European Legal Supremacy, Direct Effect,
Indirect Effect and Damages against Defaulting Member States, which were all created
via such preliminary rulings.
The change of the relationship between the ECJ and the national courts can clearly be
seen from the following diagrams:
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By introducing this new relationship, the ECJ was also able to rely upon the national
courts to act as the enforcers of Community Law, both in respect of the State and
individuals and in the domestic arena. This was essential to ensure consistency and the
uniform application of Community law in all Member States.
Note: This Article also plays a very important role in the area of Judicial Review,
protecting individuals by regulating the acts of Institutions. This will be considered in
more detail in Workbook 3. In this Unit we will concentrate upon the mechanism itself
and Article 234 (a) EC Treaty.
It is useful to remember at this point, that not all articles of the TEC are subject to
Article 234. As mentioned in Unit One, certain issues which were transferred from the
third pillar have limited such references by lower courts in the national systems. The
issue of immigration is a good example here, as this can only be dealt with ‘a national
court against whose decision there is no judicial remedy’( Art 68 EC) and an opt out has also been
granted in this Article to the UK and Ireland. Additionally references under the TEU are
also limited and some references may only be made at the specific request of a Member
State Article 35 TEU).
The Lisbon Treaty would remove both these exceptional procedures whilst widening the
competence of the ECJ to include the two remaining pillars (see ante).
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This approach can also be seen as a desire to offer guidance to the national courts even
where this guidance may in practice be ‘unequivocal’ as in the trade marks case of
Arsenal Football Club –v- Reed [2002] ECR I 10273
The trial judge in this case found that the ECJ had therefore overstepped the mark by
making findings on the facts “If this is so, the ECJ has exceeded its jurisdiction and I am not
bound by the final conclusion, I must apply its guidance on the law to the facts as found at the trial…..
The courts of this country cannot challenge rulings of the ECJ within its areas of competence. There is no
advantage to be gained by appearing to do so. Furthermore national courts do make references to the
ECJ with the intention of ignoring the result. On the other hand, no matter how tempting it maybe to
find an easy way out, the High court has not power to cede the ECJ a jurisdiction it does not have (para
28).
3. The ECJ has maintained a strict policy of non-interference over decisions about what
to refer, when to refer and how to refer. This is a question for the national court to
decide. However they have provided guidelines to assist the national courts as to the
timing and form that the reference should take.
………………….
6. It must contain a statement of reasons which is succinct but sufficiently complete to give the Court, and
those to whom the decision must be notified (the Member States, the Commission, and in certain cases the
Council and the European Parliament), a clear understanding of the factual and legal context of the
main proceedings.
In particular, it must include an account of the facts which are essential for understanding the full legal
significance of the main proceedings, an account of the points of law which may apply, a statement of the
reasons which prompted the national court to refer the question or questions to the Court of Justice and, if
need be, a summary of the arguments of the parties. The purpose of all this is to put the Court of Justice
in a position to give the national court an answer which will be of assistance to it.
The decision making the reference must also be accompanied by copies of the documents needed for a
proper understanding of the case, especially the text of the applicable national provisions.
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However, as the case-file or documents annexed to the decision making the reference are not always
translated in full into the other official languages of the Community, the national court must make sure
that its decision includes all the relevant information.(extract from ECJ Guidance Notes on
Reference by National Courts for Preliminary Rulings)
This led to an acceleration in the workload of the ECJ, with consequential delay in the
hearing and resolution of cases. It was also a factor that led to the establishment of the
CFI.
The ECJ subsequently placed some limitations upon its open door policy.
The Court will also be cautious as to references which seek to challenge legislation of
another member state other than that in which the reference was made as they made
clear in Bacardi Martin SAS –v-Newcastle United Football Company Ltd [2003]
ECR I 905 and in the case of TWD Textilwerke GmbH –v- Germany [1994] ECR I
833 refused to entertain a reference where the parties had not availed themselves of the
procedure of judicial review within the time limits imposed under Article 230 (see
Workbook 3 post) although in R-v-Intervention Board for Agriculture, ex parte
Accrington Beef Co Ltd [1996] ECR I 6699 a less rigid approach was adopted when it
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was not clear that a the parties would have been entitled to claim under Article 230.
The Court will also refuse a reference if insufficient details are provided by the national
court as in Telemarsicaburzzo Sp-v-Circostel [1993] ECR I393.
A ruling also cannot be given if the main proceedings have themselves already
terminated as in Pardini [1988] 2041.
This is set out in Article 234 EC, but required some elaboration to assess the breadth of
tribunals and courts which in the view of the ECJ was a matter of community and not
national law Corbiau –v- Administration des Contributions [1993]ECR I 1277.
to the Law and Institutions of the European Union WOR
Broekmeulen [1981] ECR 2311.
The ECJ was asked whether it could accept a reference from the appeal committee of a
Dutch professional medical body, who had refused to register the applicant as a doctor.
‘If under the legal system of a Member State, the task of implementing Community provisions is assigned
to a professional body acting under a degree of governmental supervision, and if that body creates appeal
procedures which may affect exercise of rights granted by Community law, it is imperative, in order to
ensure the proper functioning of Community law, that the Court should have the opportunity of ruling on
issues of interpretation and validity arising out of such proceedings. The appeal committee, which performs
its duties with the approval of the public authorities and operates with their assistance, and whose
decisions are accepted following contentious proceedings and are in fact recognised as final, must be deemed
to be a court of a Member State...”
On the one side a private arbitrator has been found not to be a court or tribunal
Nordsee –v- Reederei Mond [1982] ECR 1095, whereas a individual immigration
officer from the office of Immigration Adjudicator, a permanent body established by
statute with a body of fixed rules and a duty to provide reasons, was allowed to make a
reference (C-416-96 El Yassini –v- Sec of State for the Home Dept).
In Denuit –v- Transorient C-125/04 which concerned a dispute arising under the
Package Travel Directive which was brought before the arbitration panel of Belgian
Travel Dispute Commissions the Nordsee decision. The court found that in a situation
where the parties were under no obligation to refer the issue to arbitration and the
Belgian authorities were not involved in the decision to opt for arbitration, then this
arbitration panel would not be ‘a court or tribunal’. The fact that in this case the parties
had entered into an arbitration agreement thereby requiring any national court before
which the issue would be raised to decline jurisdiction, was not considered a sufficiently
relevant factor even though in a wider sense the aim of the national structure was to
provide greater protection to the consumer.
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In Victoria Film AS –v- Riksskattenverkert [1998] ECR I 7023 a court exercising its
administrative duties was found not to be a court or tribunal as its function was not to
settle any dispute but to given advisory opinions .
In Cartesio [2008] Case C-210/06 in which the Hungarian Court of Appeal also raised
the issue of whether proceedings appealing a decision of the Hungarian commercial
register court were inter partes proceedings, arguably more interesting was the issue as to
the compatibility of the Hungarian rules of procedure which seemed to permit review by
an appellate court of the right of a lower court to make an Article 234 reference. The
ECJ firmly stated “the jurisdiction conferred on any national court or tribunal … to make a reference
to the Court for a preliminary ruling cannot be called into question by the application of [national] rules,
where they permit the appellate court to vary the order for reference, to set aside the reference and to order
the court to referring court to resume the domestic law proceedings”
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CILFIT and Lanificio di Gavardo SpA -v- Ministry of Health [1982] ECR 3415
‘.. those courts or tribunals are not obliged to refer to the Court of Justice a question concerning the
interpretation of Community law raised before them if that question is not relevant, that is to say, if the
answer to that question, regardless of what it may be, can in no way affect the outcome of that case.’
Unit 4.An Introduction to the Law and Institutions of the European Union WOR
With the doctrines of EC Supremacy and Direct Effect having been established, the ECJ
was receiving many more preliminary rulings requests than before and needed to ensure
that its time was used constructively, dealing only with necessary references and not
answering questions which had already been covered in previous proceedings.
From the French legal system it borrowed The doctrine of ‘acte clair’
‘... a court or tribunal against whose decisions there is no judicial remedy under national law is required ,
where a question of Community law is raised before it, to comply with its obligation to bring the matter
before the Court of Justice, unless it has established that the question raised is irrelevant or that the
Community provision in question has already been interpreted by the Court or that the correct
application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence
of such a possibility must be assessed in the light of the specific characteristics of Community law, the
particular difficulties to which its interpretation gives rise and the risk of divergence in judicial decisions
within the Community.’
However, in accepting the doctrine, the ECJ was placing a great deal of trust in the
national courts, by delegating the discretion to determine if the issue was clear and settled
by them. In the past the national view on when to refer had not always been comparable
with the view of the ECJ, as can be seen from the English case of
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Bulmer -v- Bollinger is a famous case in British terms, due to the following quotation...
‘But when we come to matters with a European element, the Treaty is like an incoming tide. It flows up
the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is to part
of our law.’
.. But it certainly did not reflect the approach to references under Article 234 EC Treaty
which had been adopted by the ECJ.
The British view, as that of other national courts, has changed over the years.
The increasing membership of the European Community and the related increase in
references under Article 234 EC placed increasing demands upon the ECJ. In addition
Community legislation became more prolific and detailed leading the ECJ to play an
increasing role in enforcement and review of the Acts of Institutions and Member States.
In this climate the ECJ needed assistance to carry out its task of ensuring effective and
uniform application of European Community law. The national courts were obviously
placed to provide assistance and have been accordingly enrolled to assist the ECJ in
implementing and enforcing the legislation of the European Communities.
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SSEEM
MIINNAARR
Q 1. Fictional EC Directive 99/01 was adopted by the EC on 1st January 1999. The
QU UEESST
TIIO
ONNSS
Directive was specified to be based on Article 17 (citizenship of the Union) EC and its
preamble stated that its aim was “...to strengthen the rights of European Union citizens by adding
to the areas of everyday life which EU citizens may enjoy regardless of the Member State within which
they are currently residing.”
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Anne is a UK citizen who requires physiotherapy for a sports injury, which she normally
receives free of charge from her local hospital. Whilst she is on holiday in Italy she
wishes to continue receiving her therapy but is refused free treatment by a number of
Italian hospitals, some of which are State hospitals and some of which are private
hospitals.
Benito, an Italian who is spending the summer holidays with his girlfriend in France, asks
to be registered for a European election which is happening the following month. He is
refused on the basis that the appropriate French legislation, which dates back to 1914,
requires voters to have been living in France for at least 12 months previous to any
election.
Advise the parties as to any rights and remedies they may have under Directive 99/01
and the Treaty Articles on which it was based. Advise the parties also how they may
enforce any rights they may have.
‘Member States shall take all necessary measures, including provision for criminal
sanctions in the form of an appropriate fine and or/ imprisonment, to ensure that
householders do not place plastic garden gnomes in a position where they are visible to
neighbours or to members of the public.
Any person suffering visual pollution as a result of the placing of plastic gnomes in
neighbour’s garden shall be entitled to a remedy in damages. ‘
On 12th December 1999 a bill was placed before Parliament intending to implement the
Directive. The opposition defeated the bill stating Article 5 was a typically ridiculous
breach of European interference in national affairs and since that time it has remained
unimplemented. In the draft bill one penny was stated as the appropriate fine or
damages.
Tracey, who loves garden gnomes, has three gnomes in her front garden which her
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neighbour Sharon hates. Sharon has complained to the local council environmental
department, who refuses to take any actions against Tracey stating that there is no
national law prohibiting gnomes, although there is a local bye-law stating that garden
objects causing a nuisance must be removed. No successful cases have been pursued
under this provision of the bye-law to date.
3. Directive 2000/007 was adopted by the EC Member States pursuant to Article 174 of
the EC Treaty (environmental protection) on 1st January 2000. Article 1 of that Directive
states that: “In order to ensure the prudent and rational utilisation of
natural resources, and to ensure that European pollution levels do not continue to rise above their current
levels, Member States shall take all measures necessary to discourage the use of environmentally
unfriendly chemicals in the production of goods.”
Under UK law the Environmental Protection 1980 states that: “The use of
environmentally unfriendly chemicals shall be allowed only in so far as it is necessary for the manufacture
or development of medicines and other essential products.”
Bill is an environmental protection activist who wishes to protest against the use
of environmentally unfriendly chemicals by Friendly-Fire ltd, a manufacturer building a
new weapon for the Ministry of Defence. As one of only 2 EC producers of such
weapons, Bill is sure that he will make a great impact on environmental protection in the
UK if he manages to challenge this contract.
He also wishes to protest against the use of similar chemicals in tests to develop a
new microwave oven. These tests are conducted by Nuke-‘Em ltd plc, a company in
which the British government owns many shares. The government has also refused to
allow any other company to conduct the same experiments.
Having brought legal actions against both companies, Bill loses his case in the
High Court. The court decides that neither EC law nor UK is of any help to Bill’s case.
The judge also said that, even if EC law were applicable, the government would be able
to justify failure to apply the EC law because both contracts represent a vital national
interest. Although the High Court allows an appeal to the Court of Appeal, Bill is unable
to afford to pay for his lawyer’s bills and is unable to bring the case.
Meanwhile, the EC has passed a Regulation which aims to strengthen the
prohibition on the use of environmentally unfriendly chemicals. The Regulation states
that:
“All non-medical uses of environmentally unfriendly chemicals shall be prohibited. Any contracts entered
into after 1st February 2002 which involve the commercial exploitation of environmentally unfriendly
chemicals shall be rendered null and void.”
Both Friendly-Fire ltd and Nuke-‘Em plc wish to challenge the validity of this
Regulation, since their respective contracts would otherwise be void. Although Nuke-
‘Em plc has sufficient funds to bring such a case, Friendly-Fire ltd does not. The UK
Weapons Manufacturer’s Society, however, has said that it is willing to bring a challenge
to the Regulation on behalf of Friendly-Fire ltd.
Advise the parties as to any rights and remedies they may have under EC law.
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Woorrkkbbooookk 22
4. Directive 24/2004 (Fictional) requires Member States to take appropriate measures “to
ensure that all workers on underground transportation systems are given a bio-hazard
protection suit so that they are protected in the event of a terrorist attack”. The deadline
for the implementation of the directive was 31st December 2004. It is now 2006 and the
Directive still has not been explicitly implemented in the UK.
The UK does however have the Terrorism Act 2001 which states that “all employers
must take all possible measures to minimize the threat of terrorism to employees while at
work”. The UK government takes the position that this is sufficient to implement
directive 22/2004.
BU was originally a statutory corporation but was privatised by the Government in 1991
and has since been privately owned. BU has always been unprofitable since its
privatisation and it has been given government aid to keep the trains running on 5
occasions since 1991. BU has exclusive control and ownership of all tunnels and
publicly accessible subways in Birmingham. BU claims that it is not bound by the
directive and in any event the directive does not entitle Jane to what she is asking for.
The Transport Tribunal agrees and rules in favour of BU, refusing to make a reference to
the ECJ. Jane then commences proceedings in the High Court to challenge the decision
of the Transport Tribunal.
Jane also finds out that employees driving trains for “Birmingham Underground” have
received an increase in salary of 10% which constitutes ‘danger money’. BU claims that
this money constitutes compensation for the imminent threat to those closest to the
trains. 80% of train drivers are men.
Jane wishes to bring an action against BU for sex discrimination, and to pursue any
further means she may have of enforcing her rights under directive 24/2004.
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