Thursday, April 12, 2012

European Union Law Outline (post-TFEU) work in progress

EUROPEAN UNION LAW OUTLINE: POST TFEU (2012)

Disclaimer:  This is a work in progress.  I will update it as I go and hopefully have it finished in a week.  However, I figured it would be helpful to those who are taking European Union Law, focusing on AFTER the TFEU was implemented. 

The book for this outline is:  Cases and Materials on European Union Law Third Edition, Bermann, Goebel, Davey, and Fox, West Publishing, 2011. 


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CODECISION, ORDINARY LEGISLATIVE PROCESS (84-99)
-Cooperation Procedures objective: cause the Commission and Council to take Parliament’s views more seriously into consideration.

[TFEU 294]
Ordinary Legislative Procedure
Codecision gave Parliament close to an equal voice with the Council. (Agriculture, transit, asylum, etc.)
(Commission (proposal) → council (review) → Parliament (1. committee considers, 2. expresses opinion, 3. suggests amendments) → First Reading (made public, lobbying takes place)).
If council wants to adopt measure whose terms deviate from the terms of the  commission’s proposed text, vote must be unanimous.
***

EU can act only when powers are conferred upon it by the treaties.  There must be a conferral of power.
→ Exclusive → Art. 3
→ Shared Power → EU & States share power.
→ Conferral → Art. 5
→ Support/coordinate state w/o ability to legislate → Art. 2
→ Implied Powers (like necessary and proper clause) → Art. 308

Commission v. Council (Titanium Dioxide) (88)
Legal Basis - there can be more than one.
Environmental or harmonization law?
TFEU 114: Parliament and Council, after consulting the economic and social committee, can adopt measures for the approximation or provisions which have their object as establishment and functioning of the internal market.

Environmental law?  Council can act by itself.
-Is the law being challenged?
1.  Two possible reasons for the law?  (i.e., environmental + market regulation?)
2.  There can be many reasons why there is a law (multiple basis → what is the primary basis and what is the incidental effect?)

3.  Object, aim, purpose → Look at law; words; preamble; phrases, etc.
FACTS:  1989: Council by unanimous vote enacted a directive harmonizing rules on reduction of pollution caused by titanium dioxide waste which authorized council alone to adopt environmental legislation.
-Commission/Parliament challenged legality of directive on ground that Council should have acted under TFEU 114, which at the time called for cooperation procedure with qualified majority voting.

 ANALYSIS:  Choice of legal basis for measure must be based on objective factors, which include aim and content of measure.
-
Directive has two-fold aim: elimination of pollution and to improve conditions of competition in that industry - Environmental protection + improvement of conditions of competition.
PURPOSE OF COOPERATION PROCEDURE
-Increase the involvement of Parliament in the legislative process.
-Participation reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly.
-The contested measure should have been based on TFEU 95.  

Commission v. Council (Waste Directive) (90)
-Directive at issue has object of ensuring management of waste.
-Mere fact that establishment of functioning of internal market is effective is not sufficient for 95 to apply.
-Recourse to 95 not justified where measure to be adopted has only incidental effect of harmonizing market conditions within EU.

United Kingdom v. Council (Working Time Directive)
(93)FACTS: UK argues Council wrongly relied on Art 118 (enabling qualified majority voting) and should have relied on TFEU 352 or (then) 100, which required unanimity).
-UK argues that 118 permits only adoption of directives that have an objective link to health and safety of workers.  Too tenuous.ANALYSIS
-Even though the measure had ancillary effects on the establishment and functioning of the market, court says 118a must be used, as
PRINCIPAL aim was protection of health and safety of workers.  
-Look at objective: even though directive affects employment, that is not its main objective.
-Council could not explain why Sunday was a better rest day than any other, so court got rid of it, but upheld the directive otherwise.

Germany v. Council (General Product Safety Directive) (97)
-Council regulation harmonized state laws on products safety.  
-Art 9 authorized Commission, upon learning a product poses a serious risk to consumer health, and that 2+ states have reacted by taking different measures, to take decisions requiring states concerned to impose uniform temporary measures with respect to the product.
-Court said that free movement of goods can be secured only if product safety requirements do not differ significantly from one state to another.
-The measures Council is empowered under 9 are aimed at establishment and functioning of internal market.


Sphere of EU Law and Policy (103-127)
The EU may act within its many fields of action ONLY in accordance with the principle of conferred or enumerated powers.

Union Competences and Principle of Conferral
The community shall act within the limits of the powers conferred upon it by this Treaty and the objectives assigned to it therein.”  
Exclusive Union competences: states can only act if empowered by the Union to do so.
(TFEU 3 - customs union, common commercial policy, monetary policy within monetary union, competition policy, and conservation of marine biological resources.)

Shared competences: states can adopt legally binding acts to the extent that the Union does not do so.
(TFEU 4)

Union competence to support, coordinate, or supplement state actions, without any power to harmonize legislature or otherwise enact binding law.
(TFEU 6 - health, industry, culture, tourism, education, youth and sport and civil protection)
→ Wherever a treaty article authorizes the EU to take action, it specifies substantive and procedural requirements for doing so.  One of the roles of the Court of justice is to ensure compliance with these requirements.

Implied Powers
-If action by the Community should prove necessary to attain, in the course of operation of the common market, one of the objectives of the Community and this treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission after consulting the Parliament, take the appropriate measures.
TFEU 352 -
Requires Parliament consent to a proposed council measure.

Spain v. CouncilPatent rights; EU originally had no power in this area.
Article 95 - authorized harmonization to achieve the internal market (at the time required parliamentary cooperation and qualified majority voting by Council).
Spain: A grave infringement of the sovereignty of Member states b/c EC treaty did not give Community legislative power to create patent rights.

Council:  Can legislate in the field of intellectual property under 95 where necessary to achieve the internal market.
Harmonizing measures under Art. 95 are necessary to deal with disparities b/t the laws of Member States in so far as such disparities are liable to hinder the free movement of goods within the community.
-Court says that regulation aims to prevent heterogeneous development of national laws leading to further disparities which would be likely to create obstacles to free movement of medicinal products within the community and directly affect the establishment and function of the internal market.

Commission v. Council (criminal sanctions for environmental measures)

Framework Directive requiring states to adopt criminal penalties for a number of serious environmental offenses (Commission/Parliment claim that should have been adopted under TFEU 192, not TEU’s pillar 3)
-Court holds that should have been adopted under  192 - have as their main purpose the protection of the environment.
-
Protection of the environment constitutes one of the essential objectives of the community.
-Community has as its task to promote a high level of protection and improvement of the quality of the environment and to that end, EC Treaty provides for the establishment of a policy in the sphere of the environment.
-As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence.  However, in this case the states may choose the appropriate criminal penalties to apply re: environmental protection and they must be effective, proportionate, and dissuasive.
-EU may be competent to require criminal penalties as a means of ensuring the effective application and enforcement of EU law.
-There is a recognition that, despite conferral, the EU has powers that they can use, even though it may go too far.

Preemption of Member State Law
Can the laws coexist?
When there is a proceeding already taking place, can national authorities apply the same facts laid down by the national (state) law?

→ Yes, but can only be allowed in so far as it does not prejudice the uniform application throughout the rule and full effect of the measures adopted in implementation of those rules.

Wilhelm v. Bundeskartelamt (111)
Competition rules against dyestuffs manufacturers for allegedly fixing princes in violation of EU article 101.  Later that same year, German Cartel Office imposed fines on the German firms in question.Issue:  Can German Cartel Office take action concerning conduct that was, at the asme time, subject of proceedings before Commission? Holding:  Yes, National authorities MAY take action against an agreement in accordance with their national law, when an examination of the agreement from the point of view of its compatibility with Community law may not prejudice the full and uniform application of community law or the effects of measures taken to implement it. (can not prejudice community rules)
→ Parallel application of the national system can only be allowed in so far as it does not prejudice the uniform application throughout the Common Market of the Community rules on cartels and the full effect of the measures adopted in the implementation of those rules.

Masterfoods LTD. v. HB Ice Cream LTD. (113)
-D, Ice cream producer sued in Irish court to prevent P from inducing retailers to breach their contractual undertaking to display only D’s products.  Irish court found in favor of D.  
-P appealed; Commission found HB’s policy to infringe on EU competition law, D sought review to court of first instance.
-AT THE SAME TIME, P lodged a competition law complaint with Commission.
Issue:  Was the Irish court required to stay P’s appeal, pending the result of the CFI appeal and any further appeal to the Court of Justice.
Holding: The national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to court of Justice for preliminary ruling on validity of the Commission decision is warranted.

Pigs Marketing Board v. Redmond
-North Ireland legislation required producers to sell pigs through Pigs Marketing Board which regulated price and other conditions of sale.

-Under law, transporting pigs w/o authorization subjected producer to criminal sanctions.
-D was charged with transporting pigs.
Issue:  Are the provisions of the Pigs scheme incompatible with provisions of community law - regulations on common organization of market in pigmeat?
Holding: yes
Once the community has legislated for the establishment of the common organization of the market in a given sector, Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it.
1. Member states may not establish national systems restricting business in a sector specifically covered by a common market organization adopted by the EU.
2. Once the EU exercises its legislative power to install such an organization, national power to regulate various stages of production and distribution within the market is preempted. 
The Subsidiary Principle
-how broadly or narrowly may the political institutions of the Union legislate or otherwise take legally binding action in exercising the powers conferred upon them?
In areas which do not fall within Community's exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action can not be sufficiently achieved by the Member states and can be better achieved by the community.Proportionality: Community action shall not go beyond what is necessary to achieve the objectives of the treaty.
-EU should not exercise a legislative or other power shared with the States if the underlying purpose can be achieved at least as well by the States.
EU action must be shown to be more effective/efficient than states action.
-Can member states action be more effective/efficient than EU action?
-Give states a chance, if they don’t do it, EU has met the subsidiary principle.


Germany v. Parliament and Council (deposit-guarantee schemes) (109)
-Germany claimed that Council and Parliament had failed to comply with TFEU 296 - statement of reasons.  

-Court held that directive complied with principle of subsidiarity.
-Community showed that the aim of its action could best be achieved at Community level.
-In preamble, Parliament and Council stated that action taken by States in response to the commission’s recommendation has not fully achieved the desired result.
-Legislature found that objective of its action could not be achieved sufficiently by States.

 

The Queen v. Secretary of State for Health Ex Parte British American Tobacco (120)
-Did the directive on Tobacco products - stricter rules than those adopted before, infringe the principle of subsidiarity? → No.
P: no evidence has been shown that States could not adopt measures of public health protection that was considered necessary.
(1) Can the objective of the proposed action be better achieved at Community level?
-Here the directive’s objective was to eliminate barriers raised by differences which still existed in State’s laws and ensure a high level of health protection at the same time (in accordance with Art. 95).

-Court says that such an objective can not be sufficiently achieved by the States individually and called for Community action.  
Internal Affairs Doctrine and Reverse Discrimination
If wholly contained in member state the EU should not deal with it.  


Knoors v. Secretary of State for Economic Affairs
-Dutch national who resided and did business in Belgium sought to provide his services in Netherlands as well.  Dutch law ordinarily forbids such business conduct in the Netherlands without a local license.
-Netherlands contended, despite directive on freedom of establishment and freedom of services in respect of self-employed persons that authorized craftsmen to provide services in other states from their state of residence, that a Dutch national abroad could not rely on the directive.

-Directive stated “where, in a member state, the taking up/pursuit of any activity referred to in the directive is dependent on the possession of certain qualifications that States shall accept as sufficient evidence of such knowledge and ability the fact that the activity has been pursued in another State.”
-The nationals of all member states must be able to avail themselves of the liberalizing measures which the directive lays down.

-Justified by requirements flowing from freedom of movement for persons, freedom of establishment and freedom to provide services.

JUDICIAL REVIEW OF EU ACTS (128-140)
 1.  Roles of the Political Institutions and Member States
[TFEU 263]: Political institutions, member states, and other qualified parties may challenge the validity of EU measures directly to the court of justice.
If successful, the court of justice may declare the act void, pursuant to art. 231.

IBM v. Commission (what acts may be challenged directly in court of justice?)
Art. 230 - Proceedings may be brought for a declaration that the acts of Council and the Commission other than recommendations and opinions are void.
Any measure the legal effects of which are binding on, and capable of affecting the interests of the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under art. 230 for a declaration that it is void.
Can not be a PROVISIONAL MEASURE intended to pave the way for the final decision.Holding:  Neither the initiation of a procedure nor a statement of objections may be considered, on the basis of their nature and the legal effects they produce, as being decisions within the meaning of art. 230 treaty which may be challenged in an action for a declaration that they are void.
Notes: Internal administrative guidelines usually do not have the legal effects necessary for judicial review under EC Treaty art. 230.  In principle, internal guidelines have effects only within the administration itself and give rise to no rights or obligations on the part of third parties.
-Acts not producing legal effects which are binding on and capable of effecting the interests of the individual, such as confirmatory measures and implementing measures...mere recommendations and opinions...and, in principle, internal instructions cannot be challenged under Art. 230.

Private Party Standing to Seek Judicial ReviewDoes the P have standing - whether the measure is “of individual concern” to the P. 
Metro-SB-Grossmarkte v. Commission
SABA was allowed to use their distribution system, Metro had provided adverse material to the commission re: SABA, as SABA would not let Metro partake in the system.
Metro challenged the favorable decision to SABA.
Issue:  Contested decision was not addressed to P, ask:was it a DIRECT and INDIVIDUAL concern to P?Holding:  Here the P was directly and individually concerned.France v. Comafrica SpA and Dole Fresh Fruit Europe LTD. & Co.-Common agricultural policy.
2 Banana producers brought suit in court of first instance for annulment of Commission regulation-quota system on bananas.
Lower Court: system can be challenged.
Court of Justice revered: Calculation is a MULTI-STEP affair, operators first supply prior years marketing info to national authorities and authorities then verify accuracy of info supplied, applying weighted coefficient to reported quantities and sending all information to Commission.

-This was not a collection of individual decisions addressed to each operator effectively informing him the amount of bananas which he would be entitled to import in 1994.

Jego-Quere v. Commission (part 1 and 2)
French company fishing off Ireland challenged a Commission regulation fixing minimum net sizes in order to safeguard an endangered fish species.
A natural or legal person is to be regarded as individually concerned by a community measure of general application that concerns him DIRECTLY if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him.Court of Justice held:  Here the regulation did not distinguish the P individually.  No standing.
THE SCOPE OF JUDICIAL REVIEW
TFEU 263 - Four distinct grounds for invalidating community measures.
→ Lack of competence.
→ Infringement on an essential procedural requirement.
→ Infringement of the treaty or implementing law.
→ Misuse of powers.
Lack of Competence
-Whether the particular INSTITUTION that took the challenged measure/action was the competent authority to do so.
-Whether the UNION as a whole has the power to make the measure or action being challenged.
 
Germany v. Parliament and Council (Tobacco Advertising I)-Advertising and sponsorship regulations of tobacco products being challenged.
-Directive basically banned all advertising and sponsorship of tobacco products in the EU.
TFEU 168: (public health) excluded harmonization of member state laws designed to protect and improve human health.
Issue:  Was Article 95 the proper legal basis?
-In considering whether 95 was the proper legal basis, the court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (here: free movement of goods, freedom to provide services, and removing distortions of competition).

Recourse to article 95 as a legal basis is possible IF the AIM is to prevent the emergence of future obstacles to trade resulting from multifarious development of national laws.  However, the emergence of such obstacles MUST be likely and the measure in question must be designed to prevent them.-Court says that prohibition can be adopted on basis of 95 of advertising tobacco products in periodicals, magazines and newspapers.
-Can NOT be used to prohibit advertisements on posters, parasols, ashtrays, etc., which in no way help to facilitate trade in the products concerned.


Germany v. Parliament and Council (Tobacco Advertising II)
-Art. 3 of the directive allowed some advertisements in publications having to do with professionals in the tobacco business.  Art. 4 of the directive prohibited all forms of radio advertising of tobacco.  Germany attacked directive.  
Court upheld the directive.
→ Court says that many states already prohibited tobacco advertising, others would follow.
-Disparities existed between the Member States’ national laws and those disparities were such as to impede the free movement of goods and the freedom to provide services.

-The risk that new barriers to trade or to the freedom to provide services would emerge as a result of the accession of new Member States was real.
-What matters when justifying recourse to Art. 95 EC as the legal basis is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market.

-While Art. 152 EC excludes any harmonization of laws and regulations of the Member States designed to protect and improve human health, that provision does not mean, however, that harmonising measures adopted on the basis of other provisions of the treaty cannot have any impact on human health.

Infringement of an Essential Procedural Safeguard-CoJ has ruled that a violation of a procedural requirement justifies setting aside the resulting measure only if the requirement is an “essential” one.
[Requirements found to be essential include]
1.  Requirement to consult the Parliament.

2.  Requirement of Reasons.
Transocean Marine Paint v. Commission-Commission granted an association of maritime paint producers a competition law exception, when exemption expired, association requested its renewal, after review, the commission notified association of certain new conditions that producers would have to satisfy in order to have it renewed.  Later commission finally renewed provision and added an additional condition of which assocation had no prior notice of and had not commented on.  
[R]The Commission, before taking decisions, shall give the undertakings or associations concerned the opportunity of being heard on all matters to which the Commission has taken objection.
-A person whose interests are perceptibly affected by a decision taken by a public authority must be given the opportunity to make his point of view known.
-Especially important in cases such as this one where conditions impose considerable obligations with far reaching effects.
Holding:  The added condition was imposed in breach of procedural requirements and the Commission must be given the opportunity to reach a fresh decision on this point after hearing the observations or suggestions from association members.

Infringement of the Treaty or any Rule of Law Relating to its ApplicationIn contending that the Council or Commission has acted in violation of a law, the claimant typically means to say that the institution failed to satisfy the substantive conditions set out in the Treaty or legislative provisions governing such action.
-Commission has wide discretion in evaluating complex economic situations and its exercise of discretion should not be set aside unless clearly erroneous or manifestly abusive.
-Legislature has broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations.


Principle of Proportionality (160)
-By far the most important general principle of law.
-Applies not only as a limit on scope of Community/Union regulation, but also on State rules that restrict or impact adversely the achievement of common or internal market.
[R] Measure must be rationally related to a legitimate objective; its costs must not be excessive in light of its benefits; and it must represent the least restrictive alternative available and avoid unnecessary incidental constraints.

Internationale Handelsgesellschaft mbH v. Einfuhr- Und Vorratsstelle Fur Getreide Und Futtermittel (160)
-Council regulation:  grant of export licenses made conditional on prior payment of deposit which was to be forfeited if export not made.  German exporter: violates principle of proportionality.
-The costs involved in deposit do not constitute an amount disproportionate to the total value of goods in question and of other trading costs.  

-The burdens resulting from the system of deposits are not excessive and are the normal consequence of a system of organization of the markets conceived to meet the requirements of the general interest.
Held: System of licenses does not violate any right of a fundamental nature.
United Kingdom v. Council (working time directive) (164)
UK challenged working time directive.  Stated that provision could not be regarded as minimum requirement if health/safety protection of works could be attained by measures that are less restrictive and involve fewer obstacles to competitiveness of industry and earning capacity of individuals.
-Council must be allowed a wide discretion in an area which, as here, involves the legislature making social policy choices and requires it to carry out complex assessments.  Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion.
-Court holds for Council, states that it did not make any error in concluding contested measures were necessary to achieve the objective of protecting health and safety of workers.
The Principles of Equal Treatment and Non-Discrimination[TFEU 18] forbids any discrimination on grounds of nationality within the scope of application of the Treaty.
-Court readily strikes down:  
1.  Direct discrimination based on nationality.
2.  Indirect discrimination (national rules that discriminate on basis of residents - Clean Car case, 565, or require discriminatory fees for access to education from students from other States, or discriminate against providers or recipients of trans-border services.
3.  Discrimination where nationality is not an issue (next case).

Bela-Muhle Josef Bergmann KG v. Grows-Farm GmbH (skimmed milk powder) (167)
-Council regulation required animal feed producers to use skimmed milk powder as protein ingredient in products. (court makes void)
[R] Common organization of the markets shall exclude any discrimination between producers or consumers within the EU.
-Objectives of common agricultural policy are: rational development of agricultural production, assurance of fair standard of living for the whole community, stabilization of markets and availability of supplies to consumers at a reasonable price.

-Obligation to purchase at such a disproportionate price constituted a discriminatory distribution of the burden of costs between the various agricultural sectors.

Legal Certainty, Legitimate Expectations, and Non-retroactivity
-Political institutions should not disturb settled legal relationships, and should state rules that affect private parties in a clear manner to enable their proper compliance (or a challenge to the rules).
-The principle of legal certainty requires that rules imposing charges on the taxpayer must be clear and precise so that he may know without ambiguity what are his rights and obligations and make take steps accordingly.
-Protection of legitimate expectations: protect a party’s reliance on current EU rules when that party could reasonably have expected those rules to remain in force.  

Mulder v. Minister VAn Landbouw En Visserij (170)
-Dutch farmer agreed to not market milk for 5 years, 1979-1984.  1984, he decided to reenter market, denied on ground of a quota, that made the basis of reentry dependent on production in 1983-which he had none.  

-Court says that here the farmer was encouraged to exit the market and could not legitimately expect the restrictions to be in place as they were.
-Milk producers could have not foreseen this regulation.
-Such an effect frustrated the producers’ legitimate expectations.
→ The principle of legitimate expectations protects only justifiable expectations and reasonable reliance, which is measured by the objective standard of an ordinary prudent person.

Misuse of Powers (173)
-Occurs when authority is exercised for purposes other than those for which it is conferred.
(Subjective wrong: entails an inquiry into the motives or purposes behind an act rather than the act itself.

Giuffrida v. Council (173)
-P unsuccessful candidate for high post.  Position given to someone else, P sued stating competition was not genuine.  Stated post had been reserved in advance for competitor.
-Court said internal competition procedure constituted a misuse of power.

Booss and Fischer v. Commission (175)
-2 individuals sued employer based on opening that they did not get and they claim was reserved for candidates based on their nationality.
-Art. 27 of Staff Regulations forbids reserving posts for nationals of any specific State unless required for proper functioning of the service.
-Court annulled the appointments of the competitors.
-Court said that decision was based on ‘political reality’.


Complaint for Failure to Act
EU political institutions, States may bring action against Council, Parliament, Commission, and any institution, body, office or agency of the Union, should any of them, by an omission to act, violate an EC Treaty obligation.
-Subject to a kind of exhaustion of remedies requirement.
-Complaint must first call upon the D institution to act, giving it two months.  If is still dissatisfied, has 2 months to sue for inaction.  If successful, suit results in a declaration that the institution’s failure to act is contrary to the treaty.  

-Private parties may also sue under TFEU 265 for a failure to act, but they must be able to show (1) that the institution failed to act, and (2) the institution’s duty to act was a duty owed to them (this is difficult).

Lord Bethell v. Commission (179)
-User of airline services and advocate for greater airline competition asked Commission to take against against certain airlines for price fixing and other concerted practices in violation of EC treaties.  Commission got back to P, but P was dissatisfied with the result and sued.
[R] Applicant must be in a position to establish either he is the addressee of a measure of the Commission having specific legal effects with regard to him, which is, as such, capable of being declared void, OR that the Commission, having been duly called to act, has failed to adopt in relation to him a measure which he was legally entitled to claim by virtue of the rules of Community law.
-Court says P is asking Commission to open an inquiry not in respect of him, but in respect to third parties and take decisions in respect of those third parties.  (He is not in the precise legal position of the actual addressee of a decision which may be declared void).

The Plea of Illegality
-Allows a regulation to be challenged indirectly even after the time for bringing a direct challenge has expired.
-A party seeks the annulment of an individual decision addressed to it, in whole or in part because the decision in turn is based on an illegal regulation.


Damage Actions against the Union
-Asking for monetary relief against the union.
-Court of Justice has jurisdiction over damage actions against the EU.
TFEU 340 - In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.The EU’s Liability in Tort
-May include vicarious liability.  Sayag v. Leduc (184)
-Community is only liable for those acts of its servants which, by virtue of an internal and direct relationship, are the necessary extension of the tasks entrusted to the institutions.

-Servant here was driving private car on a travel order not part of ‘performance of his duties’.  
-If servant was FORCED to use his private car, the result may be different.

Liability for the EU’s Legal Acts
Where legislative action involving measures of economic policy is concerned, the Community does not incur noncontractual liability for damage suffered by individuals as a consequence of that action under article 288 of the Treaty, UNLESS a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred.

Bayerische HNL Vermehrungsbetriebe GmbH v. Council and Commission (186)
(second skimmed milk powder case)
-Skimmed milk case - required animal feed producers to use skimmed milk powder for protein ingredient in their product, forced poultry farmers to buy more expensive feed - sought damages for losses due to higher feed prices until regulation was invalidated.

-The finding that a legislative measure is null and void is insufficient by itself for the Community to incur non-contractual liability for damage caused to individuals.
Policy:  Legislative authority cannot always be hindered in making its decisions by the prospect of applications for damages whenever it has occasion to adopt legislative measures in the public interest which may adversely affect interests of individuals.
-Must be a grave disregard of the limits on the exercise of community powers.  This is not such a case.  Common Agricultural policy has wide discretion.

Sofrimport S.A.R.L. v. Commission (188)
-Commission adopted regulations suspending issuance of import licenses for dessert apples from Chile.  P’s cargo in apples was already in transit at the time, he was refused entry, P sued for damages.  Court said regulations were both of direct and individual concern to P.
-Regulations were applied to apples already in transit, impermissibly disappointed importer’s legitimate expectations.
-For damages, there must be a sufficiently serious breach of a superior rule of law for the protection of the individual or there is no liability for EU.
-Regulation was supposed to protect importers, there was a disregard of it here.
-No overriding public interest was invoked re: regulation.
-Court looks at Economic Risk Inherent in the Business, says the damage goes beyond that (in the milk case, the price had risen only a little over 2%)

-Community must make good on damages caused to P by adoption of the regulations.

FUNDAMENTAL RIGHTS, THE CHARTER OF RIGHTS, DEMOCRATIC VALUES and TRANSPARENCY
General principles of community law: recognized by court, as well as in cases (not explicitly stated in a “bill of rights”).
The Court of Justice’s Protection of Basic Rights-In Stauder v. City of Ulm, court was concerned with fundamental human rights enshrined in general principles of EU law and stated they were protected by the court.  
The Right of Property as a Fundamental EU Law Right

Nold v. Commission (Property Interest) (192)
Regulation intended to rationalize and modernize coal production and distribution required German national coal producer to sell only to wholesalers capable of entering into large 2 year supply contracts.  P, unable to buy in such quantities, contended that regulation deprived him of ability to continue in business, violating his right to property and right to freely engage in a profession.
P has property interest - look to treaties and member states.
Public Interest → Rights are not absolute.
*Rationale: better functioning of the union.
Mere commercial interests are entitled to less protection.
*Property rights give you something, balanced against public interest.
ANALYSIS:  
Fundamental rights form an integral part of the general principles of law.  In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to member states.  It cannot uphold measures that are incompatible with
fundamental rights recognized and protected by the Constitution of those states.”
-These rights are less than absolute - subject to the limitations of the public interest.
The court states that the guarantees afforded to a particular undertaking can not be extended to protect more commercial interests/opportunities, the uncertainties of which are part of the very essence of economic activity.
-P should have acknowledged the economic changes brought by the recession and carried out the adaptations accordingly.

Hauer v. Land Rheinland-Pfalz
-Council regulation re: wine surplus.  3 year prohibition on new cultivation of vines.
Dealt with communities wine surplus.
-Did regulation violate P’s fundamental rights to property and the free pursuit of commerce?
→ No, in safeguarding fundamental rights, the court is bound to draw inspiration from constitutional traditions common to the member states.
-
Internal treaties for protection of human rights on which member states have collaborated or of which they are signatories can supply guidelines which should be followed within the framework of community law.-The prohibition of new planting can not be considered to be an act depriving P, since she remains free to dispose of it or put it to other uses which are not prohibited.
-Prohibitions against use of property are limited to the extent which they are deemed necessary by a state for the protection of the general interest.

Kadi v. Council and Commission (Freezing of Assets) (198)
*Right to property: can only be infringed in certain cases and in accordance with certain procedures.
-Freezing of assets is ok - deference to legislature.
-D needs to have opportunity of putting his case to competent authorities.

-Freezing measure = disproportionate & intolerable interference to P’s property (assets)?
-Can the restriction of the exercise of P’s assets be justified?
→ Yes, P can request certain needed funds, can have case reexamined.
There must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realized.
Balance demands of the public interest v. interest of individuals concerned.
→ The applicable procedures must afford the person concerned with a reasonable opportunity of putting his case to the competent authorities.

(Here it did not satisfy this requirement, therefore the restriction to property was unjustified)
Judicial Protection of Non-Economic Fundamental Rights

Connolly v. Commission (Freedom of expression) (201)
-Senior Commission official published book “Rotten Heart of Europe”.
-Freedom of expression may be subject to limitations - limitations must be interpreted restrictively.
Interference with the freedom must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient.  
-Restrictions on the right of freedom of expression can be justified by the legitimate aim of protecting the rights of others.
-Court said, however, that P committed a breach in trust which Commission was entitled to expect from its officials and that P made it impossible for an employment relationship to exist.
The Amsterdam Treaty and Fundamental Rights
-Introduced sanctions for violating human rights.
-Council can adopt measures to combat discrimination.

Mangold v. Helm (Age discrimination) (206)
-Proportionality: will discrimination ever be justified (yes: airline pilots)

German law established a derogation from the requirement of an objective justification in the case of employees who reached age 52.
Member states MAY provide differences of treatment in employment on grounds of age, as long as they are objectively justified by a legitimate aim, including a legitimate employment policy, and by labor market and vocational training objectives and if the means of achieving that aim are appropriate and necessary.
-the principle of non-discrimination on grounds of age must be regarded as a general principle of community law.

-Here Germany did not satisfy that there was an objectively necessary reason for attainment of the objective.  (Court looks at PRINCIPLE OF PROPORTIONALITY)

The Charter of Fundamental Rights
Values: Dignity, freedoms, equality, solidarity, citizens rights, justice.
-Member states have the power to protect human rights.

Parliament v. Council (family reunification) (212)
-Limits set on minors who were over 12.
Parliament challenged the exception as a violation of fundamental rights.
-Court looks to charter, which @ the time was not legally binding (now is - Lisbon Treaty).
-Charter recommends that states have a regard for child’s interests, but they do not create a individual right for the family to be allowed to enter a territory - states have a margin of appreciation when they examine applications for family reunification.
-States have a right to weigh competing interests.
The Contribution of the Lisbon Treaty
Lisbon Treaty gave Charter of Fundamental Rights “the same legal value as the treaties”.
-Provisions of charter are binding on the courts of the EU and member states.
TEU 6(2) - The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Application of EU Fundamental Rights Principles to Member State Measures
-Court of Justice considers member states subject to fundamental rights protection when there is a sufficient nexus between state measure and EU law itself.
-When is there a sufficient nexus present?

Vereinigte Famliapress v. Heinrich Bauer Verlag (ban on games of chance in advertising)
-Austria P asked for order requiring German D newspaper to cease marketing publications in Austria that offered readers the chance to play games for prizes - in violation of Austrian anti-competition laws.
-Ban on imported periodicals w/ games of chance infringed on the FREE MOVEMENT OF GOODS under TFEU 34.
-Is P’s argument that the infringement can be justified on the overriding PUBLIC INTEREST in maintaining press diversity valid?
→ Would be okay as long as they are prescribed by law and are necessary in a democratic society.  National court will have to weigh.
1.  Is prohibition PROPORTIONATE to the aim (maintaining press diversity)?
2.  Can objective be attained by measures LESS RESTRICTIVE to intra-community trade and freedom of expression?

(Notes:  Restrictions on commercial advertising are more easily justified than those on political speech or expression.  Court has held that restriction on advertising to achieve goals of consumer protection and fair trading was reasonable and proportionate.)

Kremzow v. Austria (219)
-P claims that his unlawful imprisonment infringed his right as an EU citizen on TFEU 21, free movement.  
Court:  You don’t get to make everything into an EU law case.
-Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law.

-Situation here is not connected in any way with TFEU 21.  There must be a meaningful cross-border dimension.Transparency and Access to Documents (220)
-Decisions shall be taken as openly and as closely as possible to the citizen.
Limitations: access to regulation subject to a “harm test”
→ Threat of serious harm to a public interest?  If not, anything in the institutions possession is available.

-There should be some protection for legal advice, however (a real frank discussion of legal ideas).
-Court can invalidate a council decision to not give information if the council does not give reasons.

Netherlands & Van Der Wal v. Commission (222)
-Lawyer requested copies of commission replies to questions received from national courts.  Commission denied pleading protection to public interest in confidentiality.  
-Decision 94/90 provides for the widest public access possible.  Any exception to access must be interpreted and applied strictly.
-If court is unsure whether or not to disclose, should consult national court and refuse access only if that court objects to disclosure of the documents.
-Some documents will be confidential, some will not be.

Sweden v. Council (224)
-P requested Council to provide documents relating to meeting, concerning a draft directive on minimum standards for the reception of asylum applicants.  Council refused: interest in obtaining internal legal advice.  
Council, when asked to disclose a document, must examine:
1.  Council must satisfy itself that the document which asked to disclose does indeed relate to legal advice.  

2.  Must examine whether disclosure of the parts of the document in question which have been identified as legal advice would undermine the protection of that advice.
-Must be construed as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice.
3.  If Council takes view that disclosure of a document would undermine protection of legal advice, it is incumbent on Council to ascertain whether there is any overriding public interest justifying disclosure despite fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would be undermined.
-If council decides to refuse access, must explain why.

THE RELATIONSHIP BETWEEN UNION AND MEMBER STATE LAW (229-270)

The Direct Effect of Certain Treaty Provisions
-Court can decide that the language used in certain articles, parts of articles, of directives appropriately receive DIRECT EFFECT even if other parts do not.
-Provisions that are clear, precise and unconditional enough to create rights for private parties, not merely obligations for the member States.
→ Art. 249 - National authorities have the choice of form and methods by which directives are implemented.  States must adopt legal acts in order to make them effective in the national legal order.
Original Criteria for Direct Effect:  
1.  Precision.
2.  Unconditionality.
3.  Absence of member state discretion. (negative requirement “state may not...”)
4.  Absence of a need for implementing measures.
Vertical Direct Effect
-Vertical relationship between State and PRIVATE parties.

Van Gend En Loos v. Nederlandse Administratie Der Belastingen (232)
P, Dutch importer of ureaformaldehyde objected imposition of 85 tariff on import of that product by Dutch customs authorities.

-P claimed that new tariff violated (EEC Treaty art. 12) which required member states to refrain from increasing duties on imports which they already apply in trade w/ each other.
Issue:  Whether an individual may invoke (art. 12) before national court/tribunal, and whether reclassifying the object imported at a higher customs duty constituted a violation of (art. 12).

-Court says that, in ascertaining whether the provisions of the treaty has direct effect, it is necessary to consider the spirit, general scheme, and wording of the provisions.
-This treaty is more than an agreement which merely creates mutual obligations between the contracting states.
-The treaty involved establishments of institutions that were endowed with sovereign rights, the exercise of which affects States and their citizens.
-Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.
-Wording of art. 12 contains a NEGATIVE obligation (clear and unconditional prohibition) that is NOT qualified by any reservation on the part of the states which would make its implementation conditional upon a positive legislative measure enacted under international law.  (Holding:  Produces Direct Effects between states and their subjects.)
[Policy] Vigilance of individuals to protect their rights amounts to an effective supervision.  

Costa v. Ente Nazionale Per L’Eenergia Elettrica (ENEL)(235)
-Italy nationalized electric production, transferred property to ENEL.  P refused to pay bill, brought suit, stating that nationalization violated italian constitution and articles of treaty.

-Art. 31(1) provides that Member States shall progressively adjust any “State monopolies of a commercial character” so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of member states.”
-Member states are under an obligation to refrain (negative obligation) from introducing any new measure which is contrary to the principles laid down in the article.
-Such a
clearly expressed prohibition which came into force with the Treaty throughout the community, and so became an integral part of the legal system of the Member States, forms part of the law of those States and directly concerns their nationals, in whose favor it creates individual rights which national courts must protect.  

Van Duyn v. Home Office
-Church of Scientology case, denied admission of foreign national seeking to study or work @ UK’s church headquarters.
I:  Whether Art. 3 of
directive, which sets out substantive and procedural rules elaborating upon public policy, public security and public health exception to free movement of workers contained in Art 39 is directly effective.
→ It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations b/t member states and individuals.
-Article of directive is intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals.

-Provision lays down an obligation which is not subject to any exception or condition.  Does not require intervention of any act on the part of either the institutions of the community or of the member states.
-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.
Holding:  Only a part of the directive (not the whole directive) has direct effect.

Horizontal Direct Effect-Giving private parties rights against other private parties.

Defrenne v. Societe Anonyme Belge De Navigation Aerienne Sabena (240)
-Female flight attendant required to k to cease employment when reached certain age, male flight attendant not required to. (Dealing with direct effect of regulation to employer between employee and employer).
[TFEU 157]  Right to
equal pay for equal work.
-Question of direct effect of 157 must be considered in the light of the nature of the principle of equal pay, the aim of this provision and its place in the scheme of the treaty.
-Double Aim:  1. avoid negative competition resulting from certain states having equal pay and others not, 2.  forms part of social objectives of Community, which is intended to be not only an economic union but also ensure social progress and seek constant improvement of living and working conditions of its people.
-Principle of equal pay forms part of the foundation of the Community.

-In a situation, such as this one, where the court has establish the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks, the article is directly applicable and thus gives rise to individual rights which the court must protect (direct effect - horizontal).
If provision formally addressed to member states does it have direct effect?  -Yes, the direct effect of a provision is not excluded by the fact that it is formally addressed to the Member States, because such a circumstance “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.”  
-Since article is MANDATORY in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but extends to ALL agreements which are intended to regulate paid labor collectively, as well as to contracts between individuals.
(Not retroactive re: claims before court’s judgment.  As a general rule, the Court treats its judgments recognizing the direct effect of a treaty as applying retroactively.)
The Doctrine of Primacy of EU Law
-The Treaties and any secondary legislation enacted pursuant to them prevail over contrary provisions of State law.
-Member States have an obligation to the Community.
-Member States shall facilitate the achievement of the Community’s tasks.
-Member States shall abstain from any measure which could jeopardize the attainment of the objectives of the treaty.

Costa v. Ente Nazionale Per L’Energia Elettrica (ENEL) (245)
-A State whose constitution prevents national courts from giving immediate application to community law over a conflicting domestic statute has two courses of action, amend its Constitution or renounce the treaty itself.
-Community law has primacy over conflicting member state law.
-A regulation which shall be binding and directly applicable to all Member States, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over community law.

EU Primacy and its Corollaries

Amministrazione Delle Finanze Dello Stato v. Simmenthal SpA (247)
-Charges were imposed on importer from France to Italy (veterinary and public health inspection).
-DId charges violate principle of free movement of goods (TFEU 34)?  Yes.
-Italian court ordered Italian Finance Ministry to repay charges with interest.  Ministry appealed, stating: national court could not, under longstanding Italian constitutional procedure, treat an Italian statute as invalid and refuse to apply it, on account of its conflict with a higher norm.
-Direct applicability means that rules of Community law must be fully and uniformly applied in all Member States from the date of their entry into force and for so long as they continue in force.  Provisions are a direct source of rights and duties for those affected thereby, whether individuals or Member States, who are parties to legal relationships under Community law.

-A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect of those provisions, if necessary refusing its own motion to apply any conflicting provision of national legislation.

The Queen v. Secretary of State For Transport, Ex Parte Factortame Ltd. (250)
-UK amended merchant shipping act deliberately to prevent Spanish fishing interests from taking share of fishing quota allotted to UK under common fisheries policy.  Prevented Spanish fishing vessels from being registered as UK vessels.  Group of UK companies brought suit - all had majority of Spanish directors and were affected.
-Directly applicable rules of Community law must be fully and uniformly applied in all member States from the date of their entry into force for so long as they continue in force.  Provisions of the Treaty and directly applicable measures of the institutions render automatically inapplicable any conflicting provision of national law. 
Firma Foto-Frost v. Hauptzollamt Lubeck-Ost (253)
German court asked Court of Justice whether it had competence to declare the Commission decision giving recovery of duties invalid.  
-National courts do not have the power to declare acts of Community institutions invalid.
-The main purpose of the powers accorded to the Court by TFEU 267 is to ensure that Community law is applied uniformly by national courts.
-Where the validity of a community act is challenged before a national court, the power to declare the act invalid must also be reserved to the Court of Justice.
-CoJ is in the best position to decide validity of Community acts.

Brennet AG v. Paletta (255) Abuse of Rights doctrine.
Italian migrant workers sought disability from German employer, Brennet.  Brennet was suspicious of italian certificates, refused to pay.  German labor court ordered Brennet to pay, Brennet appealed.

-What are national authorities permitted to do in the event of suspected abuse of Community law rights?
-Community law can not be relied upon for the purposes of abuse or fraud.
-National courts may take account, on the basis of objective evidence of abuse or fraudulent conduct on the part of the worker concerned in order, where appropriate, to deny him the benefit of the provisions of Community law on which he seeks to rely.  They may nevertheless assess such conduct in the light of the objectives pursued by those provisions.
The Direct Effect of EC Directives and Decisions
-National authorities have the choice of form of methods by which directives are implemented.
-States must adopt legal acts in order to make them effective in the national legal order.
-Court can decide that language used in certain articles, or parts of articles, of directives appropriately receive direct effect while others parts do not.
Vertical Direct Effect of EC Directives and Decisions

Van Duyn v. Home Office (257)
-Church of Scientology Case (above)Environmental Protection Directives-Generally take the form of ‘framework’ directives, ordinarily lack direct effect.
-If the directive contains a provision setting out a specific obligation, such as carrying out an environmental impact assessment prior to taking action that affects the environment, then that provision may have direct effect.


Pubblico Ministero v. Ratti (260)
-Italian manufacturer packaged + labeled products in accordance with 2 community law directives (solvents) (varnishes) even though the directives not yet had been implemented in italy.
-Manufacturer prosecuted for not including labeling information that was required by Italian law then in force, but not required under the directives.
-By time the goods were marketed, deadline for (solvents) implementation passed, but not (varnishes).

1.  Solvents Directive - Deadline for Implementation Expired.
-A member state which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligation which the directive entails.
-A member state may not apply its internal law -- even if it is provided with penal sanctions -- which has not been adapted in compliance with the directive, to a person who has complied with the requirements of the directive. 

 2.  Varnishes Directive - Deadline for Implementation NOT Expired.
-It is only at the end of the prescribed period and in the event of the member state’s default that the directive will have the effects (above).

-Until that date, Member States remain free in that field.
Holding-National courts can not take into account the directive as a defense by an individual who has complied with it, if the directives date for implementation has not expired.

Notes:  As of the time the directive is adopted, and throughout the period set for its implementation by the States, Member States are precluded from adopting any national measures contrary to that directive.
-From the time a directive is adopted -- and throughout the period set for implementation by the States, Member States are precluded from adopting any national measures contrary to that directive.

Horizontal Direct Effect of Directives
The binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to each member state to which it is addressed.”
-A directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person.

Marleasing v. La Comercial Internacional De Alimentacion (265)
-Misrepresentation/Fraud re: articles of incorporation.
-Article of directive stated that companies could be declared null/void only for specific reasons in the article. Misrepresentation/Fraud was not included in that list.
-Implementation of the directive was overdue in Spain.
I: Can Spain nullify D’s incorporation for reasons other than those mentioned in Art. 11 of the directive?
-A directive may not of itself impose obligations on an individual, and as such, a provision of a directive may not be relied upon as such against such a person.


Faccini Dori v. Recreb Srl (267)
-P entered into k with language course company, 4 days later she attempted to cancel k, found liable for the k.
-Directive: protection of consumers in respect to k’s negotiated away from business premises required consumers be given right to cancel k, be informed, have 7 days.

-Italy did not implement directive until 5 years after deadline.
-If Italy did implement it, P would have not been liable.
I: Does the directive have horizontal direct effect? (No)
-binding only in relation to each member state to which it is addressed.

-Aim: to prevent the State from taking advantage of its own failures to comply with Community law.
-In the absence of measures transposing the directive within the prescribed time limit, consumers can not derive a right of cancellation as against traders with whom they have concluded a k or enforce such a right in a national court.


Wells v. Secretary of State for Transport and Local Government (269) “Triangular Effects”
-P purchased house near quarry, quarry’s owners later began mining on permission granted 40 years earlier.  Authorities granted approval, P objected, relying on directive which required Member States to conduct environmental assessment before granting consent.  No such assessment had been performed.
-Mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned.
-Directive not directly linked to the performance of an obligation that would fall on the quarry owners.

-Not horizontal: effects a 3rd party, but if the 3rd party is not the D, not a horizontal effects case.

271-298
Part II:  The Reception and Enforcement of EU Law in the Member States
Monist - Domestic & Int’l law are a single integrated legal system.
Dualist - Domestic & Int’l law are separate.  

EU Law in Belgium-Generally viewed as in the Monist tradition.
-Constitution does not speak to EU’s direct applicability or direct effect, much less its supremacy in the Belgian legal order.

Orfinger v. Belgium (277)
-P challenged royal decree on recruitment criteria for Belgian civil service.  Decree required applicants to be Belgian nationals/ or nationals of another EU State.  P objected to making nationals of other member states eligible (invoked Constitution which said only Belgians eligible).  P stated, Int’l law does not authorize states to make treaties that are contrary to their own Constitution and that an amendment was needed first.
-In case of conflict between a rule of national law and a rule of international law of direct effect in the national legal order, the rule established by the Treaty must prevail.  

-Court of Justice stated relying on provisions of national law would result in undermining the utility and efficiency of Community law and therefore can not be accepted, even where the provisions of national law are those of the Constitution.
-Belgium can leave if they don’t like it or try to negotiate.  As long as such an initiative has not taken place, the principle of rule of law requires Community law be fully applied.  
Qualified Supremacy of EU Law - Germany
-EU law is supreme, but not unconditionally so.  Solange I - Community law is neither a component part of the national legal system nor international law, but forms an independent system of law flowing from an autonomous legal source.
-Council regulation was ok, was it did conflict with the principle of proportionality or any other guarantee of fundamental rights in the German constitution (Solange = so long as).

Solange II - German constitution does not allow Germany to surrender the identity of the prevailing constitutional order or undermine essential structural parts of the Constitution such as fundamental rights.  So long as the European Communities, and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally satisfied the essential conduct of fundamental rights, the Federal Constitutional Court (of Germany) will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution.

Brunner and Others v. The European Union Treaty (284)
-Suit against Germany’s signature of the Maastricht Treaty.  
-Claim: approval of the TEU would violate the principle that all state power emanates from the people and would infringe on basic rights in German Constitution.
-Court states: Treaty establishes a European federation of states, which is based on the Member States and respects their identities; it concerns Germany’s membership of supranational organizations, not its belonging to a European state.

-Constitution was open to integration.
-The exercise of sovereign power through a federation of states like the EU is based on authorizations from States which remain sovereign and which in international matters generally act through their governments and control the integration process thereby.

-There cannot be a ‘surrender of powers’.
-TEU satisfies the requirements of certainty because it lays down the future course of implementation.

European Arrest Warrant Case (290)
-Germany received request from Spain for extradition of citizen of both Germany and Syria, so that he could be tried on terrorist activity.  Germany eventually agreed to arrest him, and he sued to obtain ruling on German constitutionality of the German European Arrest Warrant Act (was unsuccessful).  Invoked Art. 6, stating “No German may be extradited to a foreign country.
-protection can be restricted by law in certain cases, but must be in compliance with principle of proportionality.
-Here there was no judicial review, which violated the german Constitution.  

-European Arrest Warrant Act is void.  

NATIONAL REMEDIES FOR THE ENFORCEMENT OF EU LAW CLAIMS (349)
-Commission as EU law enforcer.
-Commission investigates and prosecutes under TFEU 258 re: member state EU law infringements.

-The Commission shall ensure the application of the treaties, and of measures adopted by the institutions pursuant to them and shall oversee the application of Union Law.  In addition it shall execute the budget and manage programs and exercise coordinating, executive, and management functions as laid out in the treaties.
-The bulk of day to day enforcement of EU law and policy rests in the hands of the Member State officials.
Adequacy of National Remedies
Principle of Equivalence:  Court of Justice requires the national procedural rules governing EU law claims to be no less favorable than those governing comparable domestic actions.
Principle of Effectiveness:  Not to render practically impossible or excessively difficult the exercise of rights conferred by EU law.

Rewe-Zentralfinanz EG v. Landwirtschafts Kammer Fur Das Saarland (352)
-2 German companies paid charges for inspection of apples imported f
1.  Elimination of the obstacles to the free movement of goods, persons, services, and capital (four freedoms).
2.  Common policies in the fields of agriculture, transport and competition, coordination of economic policies, and
    3. The harmonization of laws for the proper functioning of the common market.
Initial Harmonization of Laws
-The Council shall, acting unanimously on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in member states as directly affect the establishment or functioning of the common market.

Ingmar GB v. Eaton Leonard Technologies (518) Commercial Agents Directive
-Commercial Agents are intermediaries who either sell products or negotiate contracts of sale to third parties on behalf of principals.  Sales k is entered into directly between the principal and the third party.

-Goal of the CAD is to achieve equal conditions of competition in the common market by fixing uniform rules for commercial agents.
Facts:  P was appointed D’s commercial agent.  Choice of law in k required application of California law.  After k terminated, P sued for damages pursuant to article 7 of directive.  

I:  Whether directive’s indemnity on termination provisions were mandatory, overriding customary application of choice of law clause. (Court says yes)
-Regime in directive, protecting commercial agent after termination of k.  Mandatory in nature.
-It is essential for the Community legal order that a principal established in a non-member country, whose commercial agent carries on his activity within the Community, cannot evade those provisions by the simple expedient of a choice of law clause.


Bellone v. Yokahama (521)
-Italian law required commercial agents to be entered onto register.
-P, not registered, sought indemnities after termination.
ISSUE:
was mandatory registration obligation compatible with directive?
-Directive is designed to protect commercial agents.
-Entry in a register is not referred to as a condition for protection under directive, therefore, protection under directive is not conditional upon entry in register.

-Whenever the Directive allows member states to derogate from its provisions, express provision is made to that effect.

Legislative Power
The Queen v. Secretary of State for Health Ex Parte British-American Tobacco (530)
-Directive issued on cigarettes, warning covering surface of package.

-UK tobacco producers challenged directive’s validity.
-Market for tobacco products is large.
-Community can harmonize, or would be obstacles to free movement of goods.
-Directive's object: improvement of conditions for functioning of internal market, and can be adopted.
How Should Directives Be Interpreted?

Stauder v. City of ULM, Sozialamt -Uniformity (534)
Butter Case - Welfare butter, 2 directives, one says have to provide name, other says don’t have to.
-Can’t have 2 interpretations, need uniform application.
-When in doubt, the court says to use the more liberal application, no name required.
When a single decision is addressed to all the Member States, the necessity for uniform
application and accordingly for uniform interpretation makes it impossible to consider
one version of the text in isolation, but requires that it be interpreted on the basis of both
the real intention of the author and the aim he seeks to achieve, in the light in particular of
the versions in all languages.

Verein Gegen Unwesen In Handel Koln v. Adolf Darbo
“Naturally Pure Jam - D: Misleading: Jam Contains Lead” - common in the ‘natural environment’.
-Court says the risk is minimal, can not justify a barrier to free movement of goods.
-
The Court wants an objective view of misleading - assumes a critical eye to the consumer (consumer has knowledge and is well-informed)
The Issue of Local Language Requirements

Piageme & Orrs v. Peeters (Piageme I) (537) Must label in local languages.
“Labels must at least appear in the language or languages of the linguistic region where the foodstuffs are offered for sale.” Labeled in French and German, not Dutch
Court says the language of the linguistic region is the language which seems to be the most “easily understood”.  

-First goal is to promote the free movement of goods.

Piageme v. Peeters NV (Piageme II)
Preemption of National Rules by Comprehensive Harmonization

Pubblico Ministero v. RattiDangerous Solvents case, can Italy ask for more?  No, the directive restricts products and parallel rules.  The Italian court could not impose more on labeling.  The community already took it into account.  Harmonization tells you what the law needs to be, must comply with harmonization, not a Cassis Dijon analysis.Commission v. United Kingdom (Dim-dip lighting)

Express or Implied Authorization for Supplementary State Rules
Buet v. Ministere Public
The Queen v. Secretary of State for Health Ex Parte Gallaher

FREE MOVEMENT OF WORKERS (558-601)
TFEU 45 - "Freedom of movement for workers shall be secured within the Union."
-Shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work/employment.
-Shall entail right to: (subject to limitations justified)
-To accept offers of employment actually made.
-To move freely within territory of Member States for this purpose.
-To remain in territory of Member State after having been employed in that State.
-Shall not apply to public service.

RIGHTS OF THE MIGRANT WORKER, SPOUSE and FAMILY
Protection of the worker against discriminatory treatment.
TFEU 45 has Horizontal Direct Effect, enabling workers to challenge state measures that discriminate on the basis of nationality.

Lawrie-Blum v. Land Baden-Wurttemberg
FACTS:  British national obtained teaching degree from German University, applied to Stuttgart teaching training program.
-Teacher training in Germany = 2 year program; prerequisite of being a high school teacher.
-P denied admission to program b/c German law made teachers public officials and required German nationality.
ISSUE:  Should a teacher-trainee be considered a worker?
HOLDING:  Yes, the fact that trainee teachers give lessons for only a few hours a week and are paid below the starting salary of a qualified teacher does not prevent them from being regarded as workers.
RULES:  Term "worker" has a community meaning, may not be interpreted differently by each state.
-Community concept of 'worker' interpreted broadly.
-Court looks at "rights and duties" of the persons concerned:
-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.
ANALYSIS:  The court stated that the individual here gives service of some economic value to the school.
-Preparatory service not a bar to application of TFEU 45 if the service is performed under the conditions of an activity as an employed person.

Clean Car Auto Services v. Landeshauptmann Von Wien
-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."

Hicklin v. Orbeck (US comparative)
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.

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.

Groener v. Minister for Education
-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?
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.
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.

Horizontal Direct Effect

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.

Non-discrimination in "Social Advantages"

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.

Reina v. Landeskreditbank Baden-Wurttemberg
-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.
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.

Finanzamt Koln-Altstadt v. Schumacker (579)
Belgian national resided in Belgium with his wife and children, worked in Germany.  He requested more beneficial tax advantage for married resident taxpayers, Germany asked if ECT 39 forbids discrimination in taxing non-residents.
-Direct taxation does not fall within purview of Community, however, powers retained by member states must be exercised consistently with Community law.
-Treaty requires abolition of discrimination based on nationality between workers of the Member States.
-Workers who are nationals of a member state are to enjoy, in the territory of another member state, the same tax benefits as nationals working there.

-Court held that this was Indirect Discrimination.

Casagrande v. Landeshauptstadt Munchen (581)
Monthly grant to assist low income families, restricted to German nationals
P, italian migrant worker, sued for grant.
Issue: is Bavaria required to grant student aid to children of migrant workers?
HOLDING:  Yes.  In the case of the child of a foreign worker who wishes to have secondary education, this child can take advantage of benefits provided by the laws of the host country relating to educational grants, under the same conditions as nationals who are in a similar position.
Right of Free Entry and Residence

Commission v. Belgium (585)
FACTS:  3 month limit to employment search.
-Why give a right to those not workers? → Don’t want to discourage people from looking for work.
-Time Limit: rights subject to workers doesn’t give rights to go get welfare in another country.
-States have a reasonable period of time to set a limit.

"Free movement for workers entails the right for nationals of member states to move freely within the territory of other member states and to stay there for purposes of seeking employment."

Baumbast and R. v. Secretary of State for the Home Department (586)
-Child of migrant worker to pursue his education in the host member state.
-Child has the right to be accompanied by the person who is his/her primary carer and that person is able to reside with him in that Member State during his studies.
Article 39's Exceptions to Free Movement.
Public Policy and Public Security Exceptions
-Member states can limit the right of free movement on the grounds of public policy, public security, or public health.
-State must take action on public policy or public security exclusively on the personal conduct of the individual concerned.
-Forbids action based exclusively on past criminal convictions.
-Public health: state may not refuse entry or a residence permit except for disability or disease listed on annex, and a State may never expel a person for a disability or disease
occurring after he/she has received a residence permit.

Rutili v. Minister for the Interior (591)
P had residence permit revoked because of alleged leftist trade union activities and participation in riots.
-French law permits barring French nationals from residing in certain regions after conviction of serious crimes or during a state of emergency.
Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.-States are free to determine the requirements of public policy in the light of their national needs.
-However, public policy in community context must be interpreted strictly.
-Restrictions cannot be imposed on right of a national of any Member State to enter the territory of another State to stay there and to move within it unless his presence or conduct constitutes a genuine and sufficiently serious threat to public policy.
-Can't serve economic ends.

 
Adoui v. Belgium (595) -Prostitution case
-Refused residents permits to belgium on public policy grounds.
-Prostitution allowed in Belgium.
Public policy: presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.

Orfanopoulos v. Land Baden-Wurttemberg (597)
-German non-national in repeat trouble with narcotics laws, germany wants to expel, but married to German spouse with three children.
-Court finds trouble with the automatic law which has a presumption that person should be expelled.
-Examination must be done on a case by case basis.
-Removal of person from country where close members of family are living may amount to an infringement of the right to respect for family life.
-Must observe principal of proportionality.




The Exception for Public Service
 
Commission v. Belgium (Public Service I) (599) – Government workers
-Belgium required Belgian citizenship for employment in certain posts within Brussels. Belgium argued Constitution allowed only Belgian nationals to be admitted to such posts.
-Proper classification: are the posts in question typical of the specific activities of the public service in so far as the exercise of powers conferred upon by public law are responsibility for safeguarding the general interests of the State are vested in them.
 
Allue v. Universita Di Venezia (601)
-Should post of “foreign language instructor” be considered “public service”?
-No, does not involve direct or indirect participation in the exercise of powers conferred by public law in the discharge of functions whose purpose is to safeguard the general interests of the State or of other public authorities and which therefore require a special relationship of allegiance to the state on the part of persons occupying them and reciprocity of rights and duties which form the foundation of the bond of nationality.
-Six year time limit is seen as a covert form of discrimination.


EXTERNAL RELATIONS AND COMMERCIAL POLICY (1089)
-EU has had extensive dealings with nonmember countries.
Examples:
Common fisheries policy, common transport policy
1. On what basis does the EU exercise its external relations activities?
2. Exclusivity: To what extent can the Member State act independently of, or participate jointly with, the EU in an area where the EU has competence under the treaties?
3. Consider how the EU's external relations powers are divided among the EU's institutions.
The Treaty Provisions on External Relations (1091)
1. Express Grants of External Relations Powers.
(1) The union may conclude an agreement with one or more third countries or international organizations where the treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the treaties, or as provided for in a legally binding Union act or is likely to affect common rules or alter their scope.
(2) Agreements concluded by the Union are binding upon the institutions of the Union and its Member States.
The Union has exclusive competence for the conclusion of an international agreement when that is provided for in Union legislation, is necessary to exercise its internal competence or may affect common rules or alter their scope.The Negotiation and Approval of International Agreements and the role of the European Parliament.
Consultation of Parliament- Council voluntarily committed itself to inform parliament prior to commencing negotiations and prior to signing and formally concluding association agreements and commercial agreements.
-As a matter of policy, Parliament should be consulted prior to the conclusion of all significant international agreements.
-Parliament has no power to amend agreements.

Parliament v. Council (Mauritania Fisheries Agreement) (1094)
Consultation of Parliament, what constitutes an important budgetary implication?
-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.
-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).

The Court of Justice and The Community's Powers in External Relations

Commission v. Council (ERTA) (1097) – Implied Powers
-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)
-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.
-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 3
rd countries affecting the whole sphere of application of the Community legal system.
-Community shall enter into any negotiations with third countries which may prove necessary for the purpose of implementing this regulation.

Mixed Agreements
Union may have exclusive competence to deal with certain parts of a proposed international agreement, but not others.

International Agreement on Natural Rubber (1109)
Basic aim of program: smooth out fluctuations in price of rubber.
Issue: was the community competent to conclude the international agreement on rubber? Does the agreement come within the sphere of the common commercial policy?
Holding:
-The agreement here is a structured instrument in the form of an organization of the market on a world scale.
-Commodity agreements have complex objectives.
Commercial and Developmental PolicyCommunity can formulate a commercial policy based on uniform principles thus showing that the question of external trade must be governed from a wide point of view and not only having regard to the administration of precise systems such as customs and quantitative restrictions.
General Economic Policy
-In certain provisions economic policy is indeed considered primarily as a question of national interest.
-In other provisions, economic policy is envisaged as being a matter of common interest.FinancingIf the financing is to be by the member states (as here), that will imply the participation of those states in the decision making, or at least their agreements for financing and consequently their participation in the agreement together with the Community.

International Agreements in Union Law
Agreements concluded by the union are binding upon the institutions of the union and on its member states.
-Can such agreements be invoked by litigants in EU and Member State Courts?

Opel Austria GMBH v. Council (1114)
-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.
→ 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...p. 1115)
-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.
-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.
The Common Foreign Security Policy (1122)
-Decisions relating to the security policy are to be adopted by the Council acting unanimously on a proposal by the High Representative or a Member State.
Sanctions for Political Purposes

Bosphorus Hava Yollari... (1126)
-Sanctions on Yugoslavia – restriction of aircraft.
-Court says that the restriction of personal property (aircraft) is consistent with the aim of the sanctions.
-use of “day to day operation or control” instead of ownership would jeopardize effectiveness of the sanctions.
-P argues fundamental rights infringed, as well as principle of proportionality.
-Fundamental rights invoked are not absolute, may be subject to restrictions justified by
objectives of general interest pursued by the community.
-the aim pursued by the sanctions is very important.

Kadi v. Council (1130)
-Freezing of Assets case

PREFERENTIAL ARRANGEMENTS AND ACCESSION NEGOTIATIONS (1137)
European Economic Area (1143)

THE COMMON COMMERCIAL POLICY: EU IN THE WTO (1156)
-Know how the discussion of WTO relates to external relations.
Principles of non-discrimination
Do not treat imported products more favorable than domestic products.Opinion 1/94
Portuguese Republic v. Council (1177)
Petrotub SA v. Council & Commission (1180)


EUROPEAN UNION LAW
-Focus on system, evolution, legal sources, institution, law, politics.


Sources of Law and Power; Council, Commission, Parliament
-What are the sources of law?
1.  Treaty law

2.  Council and Commission/Parliament
3.  Soft Law
-Why does it matter?  Compliance or reputational harm, money, war, etc.
Hard v. Soft Law - look at:
1.  The level of obligations that the law imposes.

2.  The level of precision in the law → precision “hardens” the law.
3.  Delegation → if can self interpret, easy to get out of obligations.


When is the state obliged?
International law → Treaties “we are bound to this”
Customary international law → General practice out of a source of legal obligation.

Does not have to be universal.
International Instruments; model law, statement, etc. (not law)
Council
-Coordination of general economic policy.
-Legislative + budget policy with parliament.
-Has more power in legislation than parliament.
-Representative with each member state.
-Qualified majority voting (unless treaty otherwise)
-Most powerful
Commission
-Executive arm.

-Executes budget.
-Application of law, administer, implement law.
-Defend administrative decisions.
-Commissioners = independent, must refrain from action incompatible with their duties.

Parliament
-Originally did not legislate.

-Commission proposes legislation, council legislates with parliament.
-Can’t start legislation on its own, part of the process.
-Has investigative powers.
-Can set up committee of inquiry.

Enlargement of the legislative process
-Court of Justice (ECJ) - Most important judicial body.
-Court of First Instance (CFI) | General Court - auxiliary court created in 1989.
-Civil Service Tribunal - Created in 2006 to reduce CFI caseload.

Court of Justice
-Fundamental role is to ensure law is observed in the interpretation and application of the EC treaty.
4 Principal forms of jurisdiction.
1.  Can provide preliminary rulings - binds national courts.

2.  Can sue member states when they violate treaty provision or fail to implement proper secondary legislation.
3.  Reviews legality of legislative acts and other legally binding acts of EU institutions/agencies.
4.  Appellate review of CFI judgments on issues of law only.
-One judge per member state.  6 year terms served - partial replacement every 3 years half start term.
-Complete judicial independence is required.
-Judges may not hold political/administrative positions while in office.
-Judges select their president for 3 year terms after a new slate of judges is appointed.

Grand Chamber - Nice treaty.  11 Judges.
-Court decides when grand chamber is needed for a relatively important case.

-Must use the grand chamber whenever an institution or a member state that is a party to a proceeding requests it.

Court of First Instance (CFI) or General Court
-Judges completely independent.  Single judge may hear/decide case.  
-Decisions are made subject to right of appeal to court of justice on points of law only.

LEGISLATION, THE LEGISLATIVE PROCESS and THE BUDGETTypes of Legal Acts1.  Council and Parliament, acting jointly with EU Council and Commission may issue regulations, directives, decisions, recommendations, or opinions.
Regulation - General application → binding in its entirety and directly applicable in all member states.
Directive - Binding as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.
Decision - Binding in its entirety upon those to whom it is addressed.
Recommendation/Opinion - Not binding.
→  Regulation, Directives and Decisions
MUST state the reasons on which they are based.
Germany v. Commission - Requirement of Reasons (data + rules of law)
-Germany asked Commission for approval to import wine at lower duty.  Commission allowed only a small amount at that rate.  

-Commission did not specify the existing information upon which it relied.
-Germany sued to have decision set aside on part of insufficiency of Commission’s statement of reasons.
[R] Required statement must disclose in a clear and unequivocal fashion the reasoning that the institution(s) followed, so that the persons concerned are aware of the reasons for the measure and may defend their rights, and so the court may exercise its supervisory jurisdiction.
-Commission at error for not stating reasons.


THE LEGISLATIVE PROCESS (class 4)
-Parliament has an equal voice with council in most fields of EU legislation.

Consultation procedure:
Commission (proposal) → Council (review) → Parliament (1.  Considers via committee, 2. expresses opinion, 3. Suggests amendments.)
First reading (made public, lobbying takes place)

If council wants to adopt measure whose terms deviate from the terms of the commission's proposed text, vote must be unanimous.
Legal Basis - there can be more than 1 legal basis.
Art. 114 - EU has power to adopt powers re: establishing + function of internal market.

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