Eurooppaoikeus 2

kevät -15

The relationship between EU law and national law

primacydirect application

direct effect conformity through interpretation

1. Primacy

• created by the CJ• to ensure the enforceability of the legal order• the Union constitutes a new legal order• EU law prevails over national law• ks. Costa v ENEL 6/64

Declaration concerning primacy• Lisbon 2007• The Conference recalls that, in accordance with

well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

2. Direct applicability

• TFEU 288 (2): A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

• national implementing measures are not required unless the regulation itself resupposes otherwise

• subjective rights to individuals ? depends …

3. direct effect

• a directive without legal effect during the transition period

• direct effect first recognised in the case law

C-41/74 Van Duyn• A Dutch woman wanted to enter to the United Kingdom

to take up a post with the Church of Scientology• The policy of British government: Scientology is harmful to

the mental health … But it was not made illegal.• Miss Van Duyn was refused permission to enter on ground

of the proviso in Art.39(3)TEC: the right of free movement is “…subject to limitations justified on grounds of public policy…”

• The CJ: the application of the proviso was “subject to judicial control”

Art. 3 (1) of Directive 64/221

- measures of MSs under Art. 39TEC must be “based exclusively on the personal conduct of the individual…”

- Miss V invoked the provision: membership of the Church did not constitute “personal conduct”

- British government: no direct effect because of Art.249TEC

- The CJ: the provision had direct effect- the strongest argument: the British government had done

nothing to implement the Directive; so it was trying to deny Miss Van Duyin´s right on the ground of its own failure to implement

the importance of the deadline

C-91/92 Faccini Dori

- a contract for an English language correspondence course between Miss F and a firm concluded away from the business premises of the firm

- Miss F cancelled her order; the firm did not accept the cancellation

- Miss F invoked in the proceedings a provision of Directive 85/577/EEC

- Italy had not implemented and the time limit had passed- may consumers derive from the Directive itself a right of

cancellation?- The CJ: “a directive cannot of itself impose obligations on

an individual and cannot therefore relied upon as such against an individual” (no horizontal direct effect)

Acceptance of vertical direct effect, but not horizontal direct effect: anomalies?

• sex discrimination in employment• provision of equal pay in Art.141TEC directly

effective• discrimination in some other area than pay

prohibited in a directive horizontal effect if a woman is employed by a MS; only vertical effect if an employer is private

The European Directive on the compulsory use of seat belts had to be incorporated into law in the Member States of the EU by 9 May 2007. It made seat belts obligatory in long distance buses and coaches. Sylvia S, a citizen and taxpayer of Member State X, travelled on a long distance bus owned by a private company at the beginning of this year. There were no seat belts fitted to the bus. The vehicle made a sudden stop and Sylvia fell down from the seat and hit her mouth against an iron railing with the effect that six of her teeth were broken. According to the national law the bus company was not responsible to pay damages to Sylvia because the reason for the stop was another driver´s careless driving. Sylvia had read in the newspapers that there should be seat belts in all buses. But to her surprise she finds out that her country has not changed the national law in a way the directive requires.

4. conformity through interpretation

• ”indirect effect”• in applying national law national courts are required to interpret

their national law according to the wording and purpose of the directive (CJ – case law)

• TEU 4(3): Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

• The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

• The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.

General principles of law (GPL) adopted by the CJ

• It not possible that written sources of law always provide an answer to every question which comes before the courts.

• The same goes for the CJ, too.• A doctrine of the CJ: Community law may be

derived from the GPL.

Community Treaties as the origin of the GPL 1

• Section 4 dealing with The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed. (Art.220TEC)

• the law in the text refers to something over and above of Treaty itself?

Community Treaties as the origin of the GPL 2

• It (CJ) shall for this purpose (to review the legality of acts) have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. (Art. 230(2)TEC)

• “any rule of law” refers to something other than the Treaty itself

Community Treaties as the origin of the GPL 3

• In the case of non-contractual liability, the Community 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.(Art.288(2)TEC)

• the CJ is prepared to apply GPL even if they are not found in the legal system of every MS

Community Treaties as the origin of the GPL 4

• The CJ may declare that a specific provision of the Treaty is an application of some more general principle

• e.g. the general principle of prohibition of all kind of discrimination is based on many provisions concerning equality of sexes, nationalities etc.

GPL1:Fundamental human rights (FHR)

• FHR were not mentioned in the original Treaties• Stauder vs. City of Ulm (29/69)- The CJ clearly expressed its inclination to the human

rights:- “ Interpreted in this way the provision at issue contains

nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.”

• Lisbon 2007 the Union's accession to the European Convention for the Protection ofHuman Rights and Fundamental Freedoms

Example: Case 44/79• a person, Mrs.Hauer, owned a plot of land, on

which she wanted to plant vines • a Community regulation prevented it (a

prohibiton for a period of three years on all new planting)

• a reference was made to the CJ after Mrs. H had brought her case before the German court

• basic rights which she referred to: the right to property and freedom to pursue a trade or profession

Case 44/79: The CJ• these rights are not absolute• the regulation restricts the owner´s right

to use his land (but does not deprive it)• but if the general interest is big enough

restrictions are allowed• “It is clear …, the object of the regulation

…, is to bring to an end the surplus in European wine production and to re-establish the balance of the market …”

Controversial rights 1: C-159/90

• the right to life of the unborn v. the right of a pregnant woman to choose an abortion

• SPUC tried on the ground of the Irish Constitution to prevent student unions from giving information about British abortion clinics; the unions invoked Community law

Controversial rights 2: C-112/00

• free movement of goods v. freedom of expression and freedom of assembly

• a motor road was closed because of a demonstration for 28 hours, which caused delays to a transporting company; it claimed damages from a state (Austria)

• CJ: free movement of goods a fundamental principle of the Community; but fundamental rights form an integral part of the GPL

• right to life or prohibition of torture and inhuman or degrading punishment are absolute but freedom of expression and assembly are not absolute; a fair balance must be found by weighing the interests involved

GPL2: Legal certainty• question of retrospective legislation: is it possible that an act

operates on matters taking place before its enactment • true retroactivity: e.g. a law imposes a customs duty on

imported goods after the goods have been crossed the frontier

• quasi-retroactivity: the new duty applies only to goods crossing the frontier after the law comes into force but applies even if the importer was legally bound to import before the law came into force

• true Retroactivity prohibited in general, but exceptions allowed, if

1) the purpose of the measure could not otherwise achieved2) legitimate expectations are respected

Example: Case 2/75 concerning legitimate expectations

• in the EU common agricultural policy means among other things that national intervention agencies (IA) buy agricultural products at the intervention prices decided by the Commission

• in this case the IAs were obliged to buy grain at the intervention price

.• because of the instability of economy in France

there was a fall in the rate of French franc• it became profitable to German grain dealers to

buy grain in France and sell it to the German IA• this threatened the intervention system in

Germany • the Commission authorized the German

government to confine the purchases to German-grown grain

• the decision was made and it came into force on the same day

.• a German dealer M had bought wheat in

France in order to sell it to the German IA• the wheat was still in transit on the day of

the decision and it could not be offered to the IA according to the prevailing rule

• the German IA did not buy it; because of this M brought an action in the German courts on the ground that he had legitimate expectations when buying and arranging the shipment of the wheat

Preliminary ruling of the CJ• the importation of the wheat was not normal

trade but a speculative transaction to make profit • the objective of the Community intervention

system was not aimed to assist this kind of speculative trade

• a reasonable expectation is that the authorities will stop this kind of purely speculative activities

• the decision concerned on these grounds was not an infringement of legitimate expectations

GPL3: Proportionality

A public authority may impose obligations on a citizen only to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure.

- a reasonable relationship between the end and the means (Art. 5(3)TEC)

GPL4: Equality:Example: Case 130/75• The Council arranged a written test for a post as a

Community official simultaneously in Brussels and London on Friday, 16 May.

• This was for the Jewish people a day, during which they were not permitted to travel or to write.

• Vivian Preis, a Jewish woman, asked the Council to fix another day for the test.

• The Council replied that it could not fix another date; it was essential that all candidates were examined on the same date.

• Prais did not participate and another candidate was appointed.

• Prais claimed the annulment of the results of the competition on grounds of religious discrimination.

The CJ• “When the competition is on the basis of tests, the

principle of equality necessitates that the tests shall be on the same conditions for all candidates, and in the case of written tests … the written tests for all candidates should be the same. It is therefore of great importance that the date of the written tests should be the same for all candidates.”

• On the other hand: If a candidate informs in good time the appointing authority that religious reasons make certain dates impossible it should be taken into account in fixing the date and the appointing authority should try to avoid such dates.

GPL5: The right to a hearing• A person whose interests are perceptibly

affected by the decision taken by a public authority must be given the opportunity to make his point of view known in advance.

The courts of the EU

• the Court of Justice: one judge from each MS• the General Court • specialised courts

The Court of Justice

• is composed of 28 Judges and eight Advocates General who

• are appointed by common accord by the governments of the MSs

• for a renewable term of six years• whose independence beyond doubt • the qualifications required for appointment, in their

respective countries, to the highest judicial offices, or who are of recognised competence

The Court may sit

• as a full court in the particular cases prescribed by the Statute of the Court and where the Court considers that a case is of exceptional importance

• in a Grand Chamber of 13 judgesin particularly complex or important cases

when a party of the case so requests• in Chambers of three or five judges

The General Court• direct actions brought by natural or legal persons against acts of

Community institutions (addressed to them or directly concerning them as individuals) or against a failure to act on the part of those institutions, for example, a case brought by a company against a Commission decision imposing a fine on that company;

• actions brought by the Member States against the Commission; • actions brought by the Member States against the Council relating to acts

adopted in the field of State aid, ‘dumping’ and acts by which it exercises implementing powers;

• actions seeking compensation for damage caused by the Community institutions or their staff;

• actions based on contracts made by the Communities which expressly give jurisdiction to the Court of First Instance;

• actions relating to Community trade marks

The categories of proceedings

• Judgements1. direct actions- begin in the CJ and

end in the CJ2. preliminary rulings- begin in national

courts and end in national courts

• Opinions- the Council,

Commission or a MS may request

- whether an international agreement is compatible with the EC Treaty

Direct actions

• Against the EC- annulment actions- failure to act- non-contractual liability- appeals against

penalties- staff cases

• Against MSs- by the Commission- by a MS/MSs

Preliminary rulings

1. Interpretation of Community law2. Direct effect of Community law3. Validity of Community acts

An example of preliminary rulings and interpretations: Case C-172/99

1. The background of the case - after an invitation to tender a local authority

awarded company X to take care of bus traffic on seven routes in the Helsinki region instead of Y

- Y had previously taken care of those routes; now it had to dismiss 45 drivers

- X re-engaged 33 drivers- the conditions of the new employment relationship

were worse than the former conditions

2. Two of the re-engaged drivers brought the case before the local court

• the new employer should apply their old agreements

• the Employment Contract Act concerning assignment of the employer’s business says “when an enterprise is assigned … rights and obligations and employment benefits related to them … devolve to the new owner or proprietor”

3. What does ”assignment of the employer’s business” mean

• According to the ECA:- includes the case where only an operative

part of the business is assigned - this operative part has to remain the same or

similar

4. The Supreme Court of Finland asked for a

preliminary ruling from the CJ

Is a situation in which the operation of bus routes passes from one bus undertaking to another as a consequence of a tender procedure under Directive 92/50/EEC on public service contracts to be regarded as a transfer of a business for the purposes of Article 1(1) of Directive 77/187/EEC?

5. The Court of Justice:

• The aim of Directive 77/187 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership.

• directive may apply where there is no direct contractual link between two undertakings which are successively awarded

• Directive 77/187 does not apply where there is no transfer of significant tangible assets between those two undertakings

6. The Supreme Court of Finland

• there was no transfer of significant tangible assets between those two undertakings

• the Supreme Court ruled in favour of the company X

Enforcement

How Community law can be enforced against national governments?

1. Through action taken by private individuals in the national courts

• only through the application of the doctrine of direct effect

• if national courts apply provisions of Community law, the governments are likely to obey the rulings of their own courts

Examples• Example 1: a national government restricts the

freedom of action of its citizens in a way which contradicts Community law

• Example 2: a national government takes administrative action contrary to the some provisions of Community law

• Example 3: national authorities refuse to grant an individual a benefit to which he/she is entitled under Community law

Example 1: Case 88/77

• a MS may makes a criminal offence to do something which is covered by a Community right

• the Irish Government imposed restrictions on fishing in Irish waters which were contrary to a provision of EC law

• on this ground a Dutch fisherman was acquitted of the charge of illegal fishing

Example 2: an example

• in 1977 the Ministry of Agriculture in Britain imposed a ban on the importation of main-crop potatoes

• A Dutch potato exporter claimed in a British court that the ban was against Community law

• The CJ was of the same opinion and the ban was abolished

Example 3: an example

• an Italian widow living in France with four children and whose husband (also of Italian nationality) had died in France requested a reduction card in railway fares

• the provisions of the French law granted this only to those of French nationality

• the CJ: it would be contrary to the purpose and the spirit of the Community rules on freedom of movement of workers …

2. Through direct proceedings against the MS concerned according to the Articles

I Concept of violationa) a MS has failed to fulfil an obligation under the Treatyb) violation by the legislature or the judiciary of a MS- may fail pass legislation - may pass legislation contrary to Community law- may refuse to give direct effect to a provision of Community

law- may refuse to make a reference to the CJ- may refuse to accept that Community law overrides national

law when there is a conflict

SOME POLICIES OF THE EU

A Four freedomsB Rules on competitionC Common Agricultural Policy

A. Four freedoms in the EU

• goods• services• capital• persons

1. Free movement of goods

• goods must be able to circulate freely throughout the EU internal market

1) the principle of mutual recognition- the principle of approving goods that have been legally manufactured and

marketed in another MS- A MS may only stop a product if there are compelling reasons to justify this,

e.g.- people's lives or health are at risk- the aim is to protect the environment or the consumer

The measures taken must be necessary and only as far-reaching as is necessary.

2) the EU countries can adopt common rules (harmonization)- basic safety requirements in directives- a product need only be checked once within the EU- MS have an obligation to report to the EU Commission any proposals for

new national rules and regulations which can affect the free movement of goods or certain services

2. Free movement of services

• Individual citizens and companies must have the right to offer and provide services against payment in other MS on the same terms as those that apply to their own country's citizens and companies

• The right to free movement is not absolute:

Exceptions can be made where, for example, public order and health and safety have to be taken into account (especially services for the public good provided usually by the state and municipal organizations)

• The regulations governing the free movement of services are closely connected to freedom of establishment in another MS: the right to take up and pursue permanent activities

Free movement of capital

• the EU has adopted common minimum requirements for banks, insurance companies, fund management companies and others

• companies that are authorised to conduct activities in their country of origin must be able to sell their services or establish branches throughout the EU

• in 2002 the EU began to introduce regulations which mean that fees for cross-border payments may not be higher than the fees for domestic payments

EU citizens must be able to transfer unlimited sums of money between MSs, open bank accounts, invest funds or borrow money in other MSs

EU citizens who move to another MS to work or retire there must have the right to transfer money from one EU country to another

Free movement of persons

• EU citizens must be able to move freely between Member States in more or less the same way as the MSs' citizens are able to move around and change their place of residence or work in their own countries

• EU citizens and members of their family have the right of residence and are not required to have a residence permit

• after a stay of three months, EU citizens must register

• after five years EU citizens are entitled to permanent right of residence

• the mutual recognition of academic qualifications: obligations of an administrative or legal nature must be limited to what is absolutely necessary

B: Rules on competition

E C O N O M ICIN T E G R A T IO N

- co m p a n ie s can n o t b y re s tric t ive m e asu resto b ack the ir po s it io n in th e ir d o m e s tic m arke ts

E F F E C T IV E E C O N O M IC C O M P E T IT IO N- e con o m ic reso u rce s a re a llo ca te d in

a n e ffec tive m a nn er

T W O P U R P O S E S

Three categories of rules

CO M PANIES- prohibition of cartels

- abuse of a dom inant position- control of concentrations

PUBLIC UNDERTAKING S- the M Ss under the control

of the Com m ission

STATE AIDS- subsidies w hich distort

com petition are notallow ed

RULESW HICH AREAPPLIED TO

Prohibition of cartels or poolsPROHIBITED AS INCOM PATIBLE

w ithin the internal market

prevention, restriction or distortionof com petition

have as their object or effect AN Dm ay have a significant im pacton the trade between the M Ss

- agreem ents between undertakings- decisions by associations of undertakings

- concerted practices of undertakings

The Commission´s power

• “The European Commission has imposed a fine of € 38 000 000 on E.ON Energie AG (“E.ON”) for the breach of a Commission seal in E.ON’s premises during an inspection. The seal had been affixed to secure documents collected in the course of an unannounced inspection in May 2006. When the Commission came back the next day, the seal was broken. The inspection formed part of the Commission's enforcement activities against allegations of anticompetitive practices on the German energy markets.” (http://ec.europa.eu/comm/competition/antitrust/news.html)

Exceptions:

allow ing consum ersa fair share of the resulting

benefit

prom oting technical oreconom ic progress

w hile

the production and distributionof goods

or

contributes to im proving

a) im pose on undertakingsnothing but

necessary restrictionsvis-à-vis objectives

b) afford such undertakingsthe possibility to elim inatecom petition substantially

AND W HICH DO ES NO T

A n y ag reem entd ecis ion

co ncerted p racticew h ich

Abuse of a dominant position

m ay co n sis t in

im posing unfairpurchase prices

other unfair conditions

tothe prejudiceof consum ers

lim itingproductionm arkets or

technical developm ent

therebyplacing them at a

com petitivedisadvantage

applying dissim ilarconditions to equivalenttrancactions w ith other

trading parties

supplementaryobligations in

contracts w ith noconnection

Merger controlRegulation 139/04/EC

Definition ofconcentration

in Art. 3

Tresholds andcriteria

in Art. 1(2)

Prior notificationin tim e lim its

laid dow nin Art.4

State aid

w h ich d isto rts com p etit ion b y fa vou ring ce rta in u nd e rta k ing s o r p rod u ctio n o f go o ds

C o m p a tib le th ou g h :a id ha v in g a so c ia l ch a ra c te ra id be cau se o f n a tu ra l d is ta s te r o re xcep tio na l o ccu rran ces

M a y b e co m pa tib le : a idfo r un de rde ve lo pm etb e cau se o f a se rio u s d istu rba n cep ro m o ting cu ltu re

S u b sid ies P u b lic p ro cu re m e n ts:re g u la te d b y d ire ctives

Policies supplementing integration of internal market

• spillover effect: e.g.If environmental rules give undertakings in a country A advantages compared to the position of undertakings in a country B in the form of lower costs of production, it creates pressures to harmonize rules so that the conditions for competition are on the same level.

Taxation

• unanimous Council• may adopt provisions for the harmonization of legislation

concerning turnover taxes, excise duties and other forms of indirect taxation

• value added tax: Directive 388/77/ECC• for example: the standard rate of VAT is at least 15 %

Company law

• the competence of the EU: Art.44(2)TEC• directives like Directive 2005/56/EC harmonizing the rules

on cross border merger of a limited national liability company with a lnlc from another MS

Immaterial property rights

• - copyright and related rights• - database right• - patents• - trade marks

- designs

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related

rights in the information society Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs European Patent Convention (EPC) 1973

C. Common Agricultural Policy

The objectives of CAP(Art. 33 TEC)• to increase agricultural productivity by promoting

technical progress and by ensuring the rational development of agricultural production

• to ensure a fair standard of living for the agricultural community

• to stabilise markets • to assure the availability of supplies • to ensure that supplies reach consumers at reasonable

prices

The background of CAP• the Community buys farm output to keep prices high

enough• taxation of imports and subsidising export of

agricultural products over-production reform began in the 1990s

2002: expenditure on agriculture should be held steadypressures brought by the WTO negotiations

Three basic principles of CAP

1. Common market for agricultural products- free movement inside the EU

2. Protection of the Community - common tariffs for products from outside the Community- quotas and quantitative restrictions for some products from

outside the Community

3. Common budget- the costs of common agriculture from the budget of the EU

D. Protection of consumers (Art.94)

• the Product Liability Directive 85/374: strict liability on producers for all damage caused by defective products

• the Misleading Advertising Directive 84/450: rights of redress when a consumer has entered into a contract on the basis of misleading advertisements

• the Doorstep Selling Directive 85/577: cooling-off period of seven days for contracts made at home or away from the business premises of the seller the Distance Selling Directive 97/7

E. Equality, especially between men and women

• Art. 141: equal pay for equal work (C 43/75)• Directive 76/207: equal treatment for men and

women• indirect discrimination: apparently neutral

provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex (Directive 97/80)

• positive discrimination

F. Protection of environment (Arts 174-176)

• water and air pollution Directive 75/324• noise pollution: Directive 80/51• chemical pollution: Directive 77/728• protection of the natural environment:

directives and regulations

.II Procedure against a MS- usually the Commission begins with an informal

investigation gathering information from different sources and engages in informal discussions with the MS concerned

a) the administrative stage- the Commission delivers a reasoned opinion (= a formal

notice of default) on the matter after giving the MS concerned the opportunity to submit its observations

b) the judicial stage- the matter is put before the CJ for a final ruling- no deadline for the commencement

The actual defendant is a MS • Belgium: a discriminatory tax on wood

(Case 77/69): the Government had proposed an amendment but the Parliament had been dissolved and the breach was beyond the G´s control

• The French G in Case 232/78 argued that its ban on British lamb was justified because it was not the only state in breach