Gilbert J. Comber v. United States case brief

Gilbert J. Comber v. United States
District of Columbia Court of Appeals, 12/21/1990

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FACTS
-D (Comber) struck Joseph Pinkney once in the face with his bare fists. Joseph Pickney was D’s sister’s partner, and on the night in question he was drunk."
-The punch to the face cause subarachnoid brain hemorrhaging in a part of the brain which controls the heart and lungs.
-Mr . Butler was hit by D2, Hayward, in the jaw. Mr. Butler fell into the street, hit his head, and lost consciousness.
-Mr. Butler got up later and re-approached D2, who again hit MR. Butler. Mr. Butler again fell and hit the back of his head on the curb.
-Geriel Butler died from the back of his head hitting the curb.

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ISSUE
Whether the jury instructions were appropriate for manslaughter without the instruction for involuntary manslaughter?

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HOLDING
No.

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PROCEDURAL HISTORY
-Consolidated cases of Appellants Comber and Hayward (similar fact patterns and identical offenses).
-Reversed and remanded.

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RULE
-Voluntary Manslaughter is a killing committed with intent to kill or do serious bodily injury, or with conscious disregard of an extreme risk of death or serious bodily injury, where malice is absent.
-Involuntary Manslaughter is a killing committed, resulting during the commission of a misdemeanor, which entails the reasonable foreseeable risk of appreciable physical injury.

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ANALYSIS
-The instructions given to each of the Ds lacked clarification as to whether the death was a freakish result of a harmless misdemeanor or foreseeable risk of bodily injury, not amounting to serious bodily injury with malice, or intent to kill.
-In both cases the jury was not given a clear charge of the range of culpability statutes available.

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Link to case: Gilbert J. Comber v. United States

Colorado v. Bertine case brief, 479 U.S. 367 (1987)

Colorado v. Bertine
479 U.S. 367 (1987)

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FACTS
-D was arrested for DUI, his van was towed to an impound lot, and an officer took inventory of the items in the van.
-The officer opened a closed backpack and found controlled substances, cocaine paraphernalia, as well as a large amount of cash.
-D was charged with intent to dispense, sell, deliver, and unlawful possession of meth.

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PROCEDURAL HISTORY
-lower court granted D’s motion to suppress this evidence.
-Colorado Supreme Court affirmed.

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ISSUE
-Are inventory searches lacking a warrant based upon probable cause allowed as an exception to the warrant requirement of the Fourth Amendment?

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HOLDING
-Yes. An inventory search may be “reasonable” under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause.

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RULE
Exceptions to the Warrant Requirement – Inventory Searches
Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.

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ANALYSIS
-By securing the property, the police protect it from unauthorized interference.
-Knowledge of the precise nature of the property helps guard against claims of theft, vandalism, or negligence.
-Such knowledge helps to avert any danger to the police or others that may have been at risk regarding the property.

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CONCURRENCE
-It is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that that mandate the opening of such containers in every impounded vehicle.

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DISSENT
-Where the vehicle itself is not evidence of a crime, as in this case, the police apparently have unbridled discretion as to which procedure to use.
-The court overstates the justification exception to the 4th amendment.

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Link to case:  479 U.S. 367 (1987)

Coker v. Georgia case brief, 433 U.S. 584 (1977)

Coker v. Georgia
433 U.S. 584 (1977)

FACTS
-D escaped from prison and entered the victim's house (husband and wife), robbed the husband and raped the wife.
-D was tried and under Georgia law, a jury sentenced the defendant to death under the charge of rape.

PROCEDURAL HISTORY
-The jury was presented with a Georgia statute for rape.

-Jury could consider whether 1. rape was committed by a person with a prior record of conviction for a capital felony;
2. that the rape was committed while the offender was engaged in the commission of another capital felony; or
3. the rape was outrageously or wantonly vile horrible or inhumane.
-The jury found that the D had about two previous rape convictions and a murder conviction and he was an escaped convict. Also, D committed the rape while in the process of committing robbery. As a result, the death penalty was rendered to the D.
-The defendant appeals and argues that this sentence was “cruel and unusual” under the Eighth Amendment of the Constitution.

ISSUE
Whether the crime of rape committed by a criminal with past serious criminal record can be punished by a death sentence?

HOLDING
No.

ANALYSIS
-Court ruled the death sentence was too excessive for the crime of rape.
-The court considered the statistics of how states were stepping away from death sentences in rape cases and used these statistics to back up its ruling.
-The court reasoned that death sentence in itself is not cruel and unusual, but this sentence in a rape case is too disproportionately excessive.
- “a punishment is excessive and unconstitutional if it 1.) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or 2). is grossly out of proportion to the severity of the crime.”
-In the current case, an adult woman was raped and even though it was a serious crime, but still it was not as serious as a murder. The death sentence was simply too harsh. Sentence reversed.

NOTES
Harmelin v. Michigan: Life sentence for large drug possession.
-Court overturned the previous ruling in Solem. Court said that legislators should be give the power to decide whether some crimes should be punished more severely than the others.
-The court said that the Eighth Amendment doe not require proportionality.
-Justice Scalia said that the court went ahead and ruled on death penalty in Coker v. Georgina, but the court will not extend this rule to the death penalty.

Link to case:  433 U.S. 584 (1977)

Cartoon Network LP v. CSC Holdings, Inc. case brief, 536 F.3d 121 (2008)

Cartoon Network LP v. CSC Holdings, Inc.536 F.3d 121 (2008)
FACTS
P suing D over RS-DVR which records and plays back television shows to third party viewers.
P alleges: D’s proposed operation of the RS-DVR would directly infringe their exclusive rights to both reproduce and publicly perform their copyrighted works.

ISSUE
-Is the D, in making the RS-DVR available to the public, liable for copyright infringement?

HOLDING-No, Court concludes that copies are produced by RS-DVR customer, not P, and P’s contribution to the reproduction by providing the system does not warrant the imposition of direct liability.

RULE
→ Copies as defined in the copyright act are material objects in which a work is fixed by any method and from which the work can be reproduced.  A work is fixed in a tangible medium of expression when its embodiment is sufficiently permanent or stable to permit it to be reproduced for a period of more than transitory duration.
→ The work must be embodied in a medium, i.e., placed in a medium (the embodiment requirement) AND it must remain embodied for a period of more than transitory duration (duration requirement).  

ANALYSIS
-Loading a program in a computer’s RAM can (but does not always) result in copying that program.
-An embodiment is FIXED unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated.
⇒ Ask: 1) whether a work is “embodied” in that medium, and 2) whether it is embodied in the medium for a period of more than transitory duration.  
-Here the court stated that the duration requirement was not met because the works in this case were only embodied in the buffer for 1.2 seconds, and each bit of data was rapidly and automatically overwritten as soon as it was processed.  
[Direct Liability]
-The question is: who made this copy?-Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a D’s system is merely used to create a copy by a THIRD PERSON.
-To establish direct liability under the Act something more must be shown other than mere ownership of a machine used by others to make illegal copies.  There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner itself trespassed on the exclusive domain of the copyright owner.
-The court states:  We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.
-Volitional conduct is an important element of direct liability.  

Link to case:  536 F.3d 121 (2008)

Community for Creative Non-Violence v. Reid case brief, 490 U.S. 730 (1989)

Community for Creative Non-Violence v.  Reid
490 U.S. 730 (1989)

FACTS
-Artist and organization that hired the artist to prepare a sculpture contest the ownership of the © in that work.
-D agreed to create a sculpture for P, parties did not sign a written agreement, neither party mentioned ©.  P wanted to take the sculpture on tour, D demanded that they fix it up (D had it at this time), P refused, D filed for ©, P did the same, sued for return of sculpture and to determine copyright ownership.

ISSUE
-Is the statue a work made for hire?

HOLDING
-Court holds that statue is not a work made for hire.

ANALYSIS
-Author is the party who actually translates an idea into a fixed, tangible expression entitled to © protection.  The act carves out an important exception for a work made for hire.Written Agreement to the Contrary?

-If the work is for hire, the employer or other person for whom the work was prepared is considered the author and owns the © unless there is a written agreement to the contrary.
-Classifying a work made for hire determines not only the initial ownership of its copyright, but also the copyright’s duration and the owners renewal rights, termination rights, and right to import certain goods bearing the ©.  Sculpture fit into the 9 categories of the subsection?

Sculpture does not fit within any of the 9 categories of “specially ordered or commissioned” works enumerated in that subsection, and no agreement between the parties establishes the particular sculpture as a work made for hire.
-Congress intended to provide two mutually exclusive ways for works to acquire “work for hire” status: one for employees and the other for independent contractors.  Further, only enumerated categories of commissioned works may be accorded work for hire status.  Hiring party's right to control the product test is not determinative.

Is the hired party an employee under the general common law of agency?-Consider the hiring party’s right to control the manner and means by which the product is accomplished.  

-Consider factors such as skill required; source of instrumentalities and tools; the location of the work; duration of the relationship b/t the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; method of payment (etc. p. 314).  No one of these factors is determinative.
-Court finds that D was independent contractor, however, court also states that P and D may be joint authors if they prepared the work with the intention that their contribution be merged into inseparable or interdependent parts of a unitary whole.  If so, they would be co-owners of the © in the sculpture.

Note: Every case since Ried that has applied the test has found the hired party to be an independent contractor where the hiring party failed to extend benefits or pay social security taxes.

Link to case:  490 U.S. 730 (1989)

Pivot Point International, Inc. v. Charlene Products, Inc. case brief, 372 F.3d 913 (2004)

Pivot Point International, Inc. v. Charlene Prods., Inc.

372 F.3d 913 (2004)

FACTS
Cause of action: © infringement of a mannequin head.
D: mannequin head not copyrightable under © act.

ISSUE
Is the mannequin head subject to copyright protection?
HOLDING
-Mannequin head is useful. The Mara head is subject to copyright protection (that hungry look...).

RULES-If an article is not “useful”, then the article is a pictorial, graphic, and sculptural work entitled to © protection.
-A useful article falls within the definition of pictorial, graphic, or sculptural works only if and only to the extent that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.

TESTS
(1) Artistic features = primary, utilitarian features = secondary.
(2) The useful article would still be marketable to some significant segment of the population simply because of its aesthetic qualities.
(3) Article stimulates in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function (Temporal Displacement Test).
(4) The artistic design was not significantly influenced by functional considerations.
(5) Artistic features can stand on their own as a work of art traditionally conceived and the useful article in which it is embodied would be equally useful without it.
(6) Artistic features are not utilitarian.

ANALYSIS
-Ornamental belt buckles: The primary ornamental aspects of the buckles is conceptually separable from their subsidiary utilitarian function.
-Clothing display torsos: Not copyrightable - to the extent the forms possess aesthetically pleasing features, even when these features are considered in the aggregate, they can not be conceptualized as existing independently of their utilitarian function.
-Ribbon bicycle rack: not copyrightable.  It was, in its final form essentially a product of industrial design.
-If the elements reflect the independent artistic judgment of the designer, conceptual separability exists.
-Court says: Mara face is subject to © protection.
-It’s easy to conceptualize a human face independent of all Mara’s specific facial features.  
“Hungry Look” = protected from copying.  The creative aspects of the Mara statue were meant to be seen and admired.

Lotus Development Corp. v. Borland International, Inc. case brief, 516 U.S. 233 (1996)

Lotus Development Corp. v. Borland International, Inc.

516 U.S. 233 (1996)

FACTS
-Here dealing with a spreadsheet program, menu = a virtually identical copy of the entire menu tree)
-Did not copy code, only copied words and structure of the menu tree.
-Copied to make it easier for users already familiar with lotus to be able to switch to Borland.

ISSUE:  Is the Lotus menu tree system copyrightable expression?

HOLDING:  No, Lotus menu command = uncopyrightable method of expression.

Argument:  D states that P menu not copyrightable b/c it is a system, method of operation, process or procedure.
-Court concludes that Lotus program = method of operation.
RULES
Method of Operation
Refers to the means by which a person operates something, whether it be a car, food processor, or computer.
-If specific words are essential to operating something, then they are part of a method of operation, and unprotectable.

ANALYSIS
-Lotus wrote its menu command hierarchy so that people could learn it and use it.  It falls squarely within the prohibition on c. protection in Baker v. Selden.
 

Concurrence: Utility does not bar copyright.
-A new menu may be a creative work, but over time its importance may come to reside more in the investment that has been made by users in learning the menu and in building macros in reliance on the menu.
-QWERTY example. Everyone has learned to use it.  It is a (flawed) menu of letters.

Link to case:  516 U.S. 233 (1996)

Schrock v. Learning Curve case brief, 586 F.3d 513 (2009)

Schrock v. Learning Curve
586 F.3d 513 (2009)

FACTS
-P alleges that producer of Thomas the Tank Engine toys had exceeded its license to reproduce and distribute P’s photographs of the toys.  
-D states that: P had no copyright to infringe because the photographs lacked sufficient originality.

ISSUE
-Were the photographs of Thomas the Tank Engine copyrightable?

HOLDING
-yes, the court stated that the photographs did not fall into the category of photographs that can be classified as ‘slavish copies’ that lacked any independent created expression.  

RULES
-To be copyrightable, a derivative work must contain some substantial, not merely trivial originality.
-The test of originality is concededly one with a low threshold in all that is needed is that the author contributed something more than a merely trivial variation, something recognizably his own.

-P’s artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own.

ANALYSIS
Example of artists A and B who both painted their variations of the Mona Lisa, a painting in the public domain.  If the difference between A’ s and B’s will also be slight, so that if B had access to A’s reproductions the trier of fact will be hard-pressed to decide whether B was copying A or copying the Mona Lisa itself.
-The only originality required for a new work to be copyrightable is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors.  This standard does not require a high degree of incremental originality.
[General principles:] (1) The originality requirement for derivative works is not more demanding than the originality requirement for other works; and (2) the key inquiry is whether there is sufficient nontrivial variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.
-Copyright in a derivative work is thin, extending only to the incremental original expression contributed by the author of the derivative work. 

Link to case:  586 F.3d 513 (2009)

Continental Casualty Co. v. Beardsley case brief, 253 F.2d 702 (1958)

Continental Casualty Co. v. Beardsley
253 F.2d 702 (1958)

FACTS
-Pamphlet describing policy and forms for new kind of insurance.
-Unlike blank forms in Baker v. Selden, Beardsley’s forms included prose that was explanatory of his insurance plan.

ISSUE
Was the pamphlet copyrightable?

HOLDING
⇒ Somewhat; the court concludes that copyright on the forms may protect only the exact rendition of the precise wording employed by the copyright owner [Thin Copyright].  

RULES
Facts and Compilations
A “Compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.  Includes collective works.

ANALYSIS
⇒ For a work to qualify as a copyrightable compilation (each must be met): (1) the collection and assembly of pre-existing material facts or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an “original” work of authorship.
⇒ The copyright in such a work is INDEPENDENT of and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
⇒A compilation results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever have been subject to copyright.  
⇒A derivative work, on the other hand, requires a process of recasting, transforming, or adapting one or more preexisting works; the preexisting work must come within the general subject matter of copyright set forth in 102, regardless of whether it is/was ever copyrighted.

Link to case:  253 F.2d 702 (1958) 

City of Indianapolis v. Edmond case brief, 531 U.S. 32 (2000)

City of Indianapolis v. Edmond531 U.S. 32 (2000)
FACTS
In August 1998 the city began operating vehicle checkpoints to interdict narcotics. There were 6 such roadblocks, stopping a total of 1,161 vehicles and arresting 104 motorists in about 4 months—58 for drug related crimes (hit rate of 9%--this is very high compared the hit rate in Sitz & Martinez-Fuerte cases).

Procedure at stop:
1.)  Officers had predetermined system for setting up checkpoints and choosing what vehicles were pulled over.  Officers had no discretion.
2.) Max time for initial stop w/o suspicion was 5min, average stop was 2-3 minutes.
3.)Inspection was visual walk-around and brief questioning of driver. Dogs walked around vehicle.
4.) A search could only be done with consent or particularized suspicion.

ISSUE
Were the roadblocks Constitutional?

HOLDING
Obviously there’s a seizure, but the fact that the dogs are used does not create a search of the initial stop.

PROCEDURAL HISTORY
-District court denied motion for prelim injunction, 7th Cir. Reversed, US Supreme Court affirms.

RULES
Border/DUI Checks Distinguished:

1.)  In the other checkpoint cases the Court allowed them because they were designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.
-The program contravenes the 4th Amendment.
2.)  Petitioners argue their stop serves the same general purpose—crime prevention, but this is too broad.
3.)  They also argue that drugs are an especially severe problem, but the gravity of the problem alone cannot be dispositive.

RULES
-Court should consider the nature of the interests threatened and their connection to the particular4 law enforcement practices at issue.
-Unlike Sitz, these checkpoints did not serve a purpose specifically aimed at highway safety.  Here there is too indirect an impact.
-We cannot sanction stops justified only by the generalized interest and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.
Whren’s holding that the subjective intent of the officers does not matter does not apply b/c it was specifically addressing ordinary, PC 4th analysis—this is not a PC situation.
This holding applies to programs, not the motivation of particular officers. If there is a Constitution reason for a checkpoint, arrests for narcotics found as a secondary purpose are fine.
 

DISSENT
-These stops serve the legitimate interests in preventing drunk driving and checking licenses and registration. The primary purpose of the stop should not be controlling.
-The reasonableness of the checkpoints turns on whether they effectively serve a significant state interest w/minimal intrusion on motorists.
-The Court has created a new test, the primary purpose test, which is ill suited to brief roadblock seizures.
-Thomas: Sitz and Martizes were wrongly decided, this whole system is flawed.

Opel Austria GMBH v. Council case brief

Opel Austria GMBH v. Council

FACTS
-Duty imposed on gearboxes produced by General Motors in Austria. Imposed to offset certain state aids extended by Austria to GM.
-Regulation adopted on basis of common commercial policy power and 1972 Council regulation on imposition of safeguards provided for in Austria-EC free trade agreement (FTA).
-FTA agreement superseded by EEA agreement.

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→ P claims: EEA agreement was part of the factual and legal situation existing at time when regulation adopted. By adopting regulation a few days before EEA agreement entered into force, Council infringed on principle of good faith.

According to the principle, pending the entry into force of an international agreement, signatories to an international agreement may not adopt measures which would defeat its object and purpose.
Rule (State is obliged to refrain from acts which would defeat the object of a treaty)
-Court asks if EEA has direct effect:
    Provisions of such an agreement may have direct affect if they are unconditional and     sufficiently precise.
-EEA agreement states customs duties on imports/exports and any charges having equivalent effect are prohibited between contracting parties.
-Here the rule is unconditional and precise.

RULES
-Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of articles 31 and 38 TFEU, even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect or if the product on which the charge is imposed is not in competition with any domestic product.
-Court holds by adopting the contested regulation in the period in question, the P's legitimate expectations were frustrated.

Commission v. Council (ERTA) case brief

Commission v. Council (ERTA) 
Implied Powers

FACTS
-Dispute b/t commission and council over whether the Commission or member states had right to negotiate the European Road Transport Agreement with non-Member states. (Council)

RULES
-whenever the EC has promulgated internal rules in a certain field---for instance, has taken measures binding on the member states---then the powers to act externally in that field are created. Moreover, under certain conditions, these powers will be of an exclusive nature: as soon as the EC comes into possession of these powers, the member states will have lost them.

ANALYSIS
-Each time the community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, Member states no longer have the right, acting either individually or collectively, to undertake obligations with third countries which affect those rules.
-When such common rules come into being, Community alone is in a position to assume and carry out contractual obligations towards 3rd countries affecting the whole sphere of application of the Community legal system.

Parliament v. Council (Mauritania Fisheries Agreement) case brief

Parliament v. Council (Mauritania Fisheries Agreement)
Consultation of Parliament, what constitutes an important budgetary implication?

FACTS
-Parliament argues that in determining whether an agreement has important budgetary implications, criteria to be taken into account includes the fact that expenditure under agreement is spread out over several years.

ANALYSIS
-Modest annual expenditure may, over a number of years, be significant.
-Appropriations allocated to the external operations of the Community traditionally account for a marginal fraction of Community budget.
-Comparison of the expenditure under an agreement with the amount of the appropriations designed to finance the Community's external operations enables that agreement to be set in context of the budgetary outlay approved by the Community for its external policy.
-Here Parliament did not need to be asked to assent. Fisheries agreement here did not have important budgetary implications for Community. (barely more than 1% of whole of the payment appropriations allocated for external obligations by community).

Reina v. Landeskreditbank Baden-Wurttemberg case brief

Reina v. Landeskreditbank Baden-Wurttemberg

FACTS
-German state had a system of interest free loans provided by a state bank to parents to cover childbirth expenses.  Only couples with at least one German spouse were eligible.
-Policy: to promote German population growth and reduce voluntary abortions.
-P had twins (Italian), sued to obtain loan.

ISSUE:  Was the interest free loan system in which only Germans were eligible void under TFEU 45?

HOLDING:  The court has no powers in the field of demographic policy, and the member states are permitted, in principle, to pursue their achievement of the objectives in such a policy, even by means of social measures.   However, the childbirth loans here are not considered as falling outside the scope of the rules of Community law because they are rooted in the demographic policy.

RULES
Non-Discrimination in Taxation
-Forbids discrimination in regards to tax advantages.
-Issue: frontier worker, living in one member state, but crossing border regularly in order to work in another state.

Ministere Public v. Mutsch case brief

Ministere Public v. Mutsch

FACTS
-D, Luxembourg national whose native language is German resided/worked in German speaking community in Belgium.
-Belgium law permits Belgium nationals in certain German language regions to demand that criminal proceedings against them be conducted in German.
-D was convicted of a crime and did not get the benefit of the law.

ISSUE: Was D discriminated against?

HOLDING: Yes, a worker who is a national of one member state and habitually resides in another member state is entitled to require that criminal proceedings against him take place in [German] if workers who are nationals of the host member state have that right in the same circumstances.

ANALYSIS

-Since D is a worker in the state, the court looks at it under TFEU 45.

Angonese v. Cassa Di Risparmio Di Bolzano case brief

Angonese v. Cassa Di Risparmio Di Bolzano

FACTS
-In Bolzano, Northern Italian region where German is commonly spoken, bank required employees to be equally proficient in German and Italian.
-P, Italian citizen, studied at University of Vienna, contested bank's refusal to consider application without having taken the required test, stating that his university studies (which did not include German, and for which he did not receive a diploma for) should be considered to prove German proficiency.
 
ISSUE:  Does the principle of non-discrimination in TFEU 45 have horizontal direct effect?
 
HOLDING:  Yes, it must be regarded to applying to private persons as well.
 
ANALYSIS  
-Principle of non-discrimination in TFEU 45 is drafted in general terms, not specifically addressed to Member States.
-Prohibition on discrimination based on nationality applies BOTH to actions of public authorities as well as to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.
-Prohibition of discrimination applied equally to all agreements intended to regulate paid labour collectively, as well as to contracts between individuals.
 
ISSUE 2:  Is the bilingual examination certificate requirement discriminatory?
 
HOLDING 2: Yes, principal of nondiscrimination precludes any requirement that the linguistic knowledge in question must have been acquired within the national territory.
 
ANALYSIS  
-The fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular, by equivalent qualifications obtained in other member states, must be considered DISPROPORTIONATE in relation to the aim in view.

Groener v. Minister for Education case brief

Groener v. Minister for Education

FACTS
-Irish constitution declares Irish official language of Ireland.
-Ministry of education issued regulation requiring all lecturers in vocational educational institutions to have certificate of proficiency in Irish language.
-P, Dutch national, employed as part time art teacher in Ireland, she applied for permanent post, college wanted to grant, but she failed Irish language exam.
 

ISSUE: Can a State have employment condition relating to linguistic knowledge?
 

HOLDING:  Yes, (see analysis).

 RULES 

-Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is BOTH the first language AND the national language.
-HOWEVER, the implementation of the policy MUST NOT ENCROACH upon a fundamental freedom, such as the free movement of workers.
-Requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States.

ANALYSIS  

-Obligation imposed applies without distinction to Irish and other nationals.
-Court considers first the nature of the post of lecturer in art justifies the requirement of knowledge of Irish language?  Court states that art is conducted almost exclusively in English language - knowledge of the Irish language is not required for the performance of the duties of the position.
-Court looks at the special linguistic situation in Ireland.  Ireland seeks to promote the use of Irish as a means of expressing national identity and culture.  Irish courses are compulsory for children.
-Court states that education is important, it is not unreasonable to require them to have some knowledge of the first national language.  However, that knowledge requirement must not be disproportionate in relation to the objective pursued.
-Linguistic knowledge can be pursued anywhere, and nationals of other member states should be able to retake test.

Wurttembergische Milchverwertungsudmilch v. Ugliola case brief

Wurttembergische Milchverwertungsudmilch v. Ugliola

FACTS

-German law required employers to treat period which employee must spend in military service as though it were employment for purposes of seniority and pension benefits.
-Italian worked in Germany for several years before being required to perform compulsory Italian military service obligation.
-Employer refused to treat period of Italian service as it would German service.
 

ISSUE: Can one state's employer discriminate based on military service?
 

HOLDING:  No, TFEU 45 does not allow member states to make any exceptions to the equality of treatment and protection required by the Treaty for all workers within the Community by indirectly introducing discrimination in favor of their own nationals alone based on obligations for military service.

Hicklin v. Orbeck case brief, 437 U.S. 518 (1978)

Hicklin v. Orbeck437 U.S. 518 (1978)

FACTS 

1972, Alaska concerned about high unemployment, adopted Act, which required all parties acting under Alaskan oil and gas leases or under AK permits for oil and gas pipelines to give hiring preference to AK residents.    Set up a system of state residence cards for AK residents (one year in AK).

-Non-resident job applicants challenged the act.

PROCEDURAL HISTORY

-AK supreme court sustained preference, but struck down year requirement as excessively long.
 

ISSUE:  Was the Act Unconstitutional?
 

HOLDING:  Yes, under the Privileges and Immunities Clause.
 

ANALYSIS 

-Here AK did not show something to indicate that "non citizens constitute a peculiar source of evil at which the statute is aimed."
-The discrimination of the act against nonresidents does not bear a substantial relationship to the peculiar evil they are said to present.

Link to Case:  437 U.S. 518 (1978)

Clean Car Auto Services v. Landeshauptmann Von Wien case brief

Clean Car Auto Services v. Landeshauptmann Von Wien

FACTS

-Austrian Trade Code requires legal entities to have manager resident in Austria.

-P applied to be registered, application was rejected b/c manager was a resident of Berlin at the time, although he was seeking to live in Austria.

ISSUE:  Does residence requirement for company managers constitute indirect discrimination under TFEU 45?

HOLDING:  Requirement that nationals of other states must reside in state in order to be appointed a manager constitutes discrimination based on nationality under TFEU 45.

APPLICATION 

-Here the law applies without regard to the nationality of the person to be appointed as manager.  Court says that national rules under with a distinction is drawn on basis of residence are liable to operate to the detriment of nationals of other member states.

-Court says the residence requirement would be okay if based on objective criteria independent of nationality of employees, and proportionate to a legitimate aim pursued by national law.

D's ARGUMENT:  Residence requirement justified objectively by the needs to ensure that manager could act effectively.  (court disagrees).

Three Criteria for whether an employment relationship exists:  "The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."