The current developments of ECJ case-law

Dr Bartłomiej Kurcz, LL.M. (Leuven), DLS (Cantab), European Commission (DG MARKT)

Copyright © Bartłomiej Kurcz 2010

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Objective

• Learn more about EU law through case-law

• See recent trends, top-down approach

• Learn how to argue your case

• Learn how to present your case

• Achieve the best result with the help of other participants

Prerequisite

• Cases read before coming to class• All in your hands - the less you are

prepared, the less interesting the course will be

• Arguments to be prepared, going beyond arguments used by parties in the proceedings

• Possible Powerpoint presentations of legal context of discussed cases

Identify:

• The most interesting EU legal problems in your view

• Does the ECJ deal with the identified problems?

• Does the ECJ set any limits of EU law? Does EU law have any limits?

Cases

1. Institutional questions

• C-411/06 Comm v Parliament v Council• Action for annulment − Regulation (EC) No 1013/2006 –

Shipments of waste − Choice of legal basis – Articles 133 EC and 175(1) EC

• The Commission puts forward a single plea in law, alleging infringement of the EC Treaty resulting from the choice by the Parliament and the Council to base the contested regulation solely on Article 175(1) EC and not on Articles 133 EC and 175(1) EC, as it had proposed. A dual legal basis is called for because both the purpose and the content of the Regulation comprise two indissociable components, one relating to the common commercial policy and the other to protection of the environment, neither of which can be regarded as secondary or indirect as compared with the other.

2. Failure to fulfil obligations

• C-121/07 Comm v France• (Failure of a Member State to fulfil obligations – Directive

2001/18/EC – Deliberate release into the environment and placing on the market of GMOs – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Non-compliance –Article 228 EC – Judgment complied with during the proceedings – Pecuniary penalties

3. Non-discrimination - citizenship

• C-499/06 Nerkowska• Disability pension granted to civilian victims of war or

repression – Condition requiring residence in national territory – Article 18(1) EC)

• Summary of the Judgment• Citizenship of the European Union – Right of free

movement and residence in the territory of the Member States – Social advantages

• (Art. 18 EC)

4. Citizenship - studies

• C-11/06 Morgan• Citizenship of the Union - Articles 17 EC and 18 EC -

Refusal to award an education or training grant to nationals of Member States pursuing their studies in another Member State - Requirement of continuation between studies pursued in another Member State and those pursued previously for at least one year in an establishment in the student’s Member State of origin.

5. Refugees

• C-465/07 Meki Elgafaji• Directive 2004/83/EC - Minimum standards for

determining who qualifies for refugee status or for subsidiary protection status - Person eligible for subsidiary protection - Article 2(e) - Real risk of suffering serious harm - Article 15(c) - Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict - Proof .

6. EU liability

• C-440/07 P Comm v Schneider

• Appeal - Concentrations - Regulation (EEC) No 4064/89 - Commission decision declaring a concentration incompatible with the common market - Annulment - Non-contractual liability of the Community on account of the illegality found - Conditions.

7. Fundamental freedoms

• C-222/07 UTECA• Reference for a preliminary ruling - Article 12 EC -

Prohibition of discrimination on grounds of nationality - Articles 39 EC, 43 EC, 49 EC and 56 EC - Fundamental freedoms guaranteed by the EC Treaty - Article 87 EC - State aid - Directive 89/552/EEC - Pursuit of television broadcasting activities - Obligation for television operators to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television, 60% of that funding being reserved to the production of works of which the original language is one of the official languages of the Kingdom of Spain and of which the majority is produced by the Spanish film industry.

8. Fundamental freedoms

• C-341/05 Laval• Freedom to provide services - Directive 96/71/EC -

Posting of workers in the construction industry - National legislation laying down terms and conditions of employment covering the matters referred to in Article 3(1), first subparagraph, (a) to (g), save for minimum rates of pay - Collective agreement for the building sector the terms of which lay down more favourable conditions or relate to other matters - Possibility for trade unions to attempt, by way of collective action, to force undertakings established in other Member States to negotiate on a case-by-case basis in order to determine the rates of pay for workers and to sign the collective agreement for the building sector.

9. Flight compensation

• C-549/07 Hermann/Alitalia• Carriage by air - Regulation (EC) No 261/2004

- Article 5 - Compensation and assistance to passengers in the event of cancellation of flights - Exemption from the obligation to pay compensation - Cancellation due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

10. State aid – res judicata

• C-119/05 Lucchini

• State Aid - ECSC - Steel industry - Aid declared incompatible with the common market - Recovery - Whether a judgment of a national court has the authority of res judicata.

11. Competition law - undertaking

• C-350/07 Kattner Stahlbau• Competition - Articles 81 EC, 82 EC and 86 EC -

Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases - Concept of an ‘undertaking’ - Abuse of dominant position - Freedom to provide services - Articles 49 EC and 50 EC - Restriction - Justification - Risk of serious harm to the financial equilibrium of the social security scheme.

12.

• C-209/07 Beef Industry Development

• Competition - Article 81(1) EC - Concept of an ‘agreement having as its object the restriction of competition’ - Agreement to reduce production capacity - Beef and veal.

13.

• C-49/07 MOTOE• Articles 82 EC and 86 EC - Concept of ‘undertaking’ -

Non-profit-making association representing, in Greece, the International Motorcycling Federation - Concept of ‘economic activity’ - Special legal right to give consent to applications for authorisation to organise motorcycling events - Exercise in parallel of activities such as the organisation of motorcycling events and the conclusion of sponsorship, advertising and insurance contracts.

14. International relations - CFSP

• C-117/06 Gerda Mollendorf• Common foreign and security policy - Specific restrictive

measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban - Freezing of funds and economic resources - Regulation (EC) No 881/2002 - Articles 2(3) and 4(1) - Prohibition on making economic resources available to persons listed in Annex I to that regulation - Scope of prohibition - Sale of immovable property - Contract concluded before inclusion of a buyer in the list in Annex I - Application for registration of the transfer of ownership in the Land Register subsequent to that inclusion.

15. International treaties

• C-205/06 Comm v Austria• Failure of a Member State to fulfil obligations -

Infringement of the second paragraph of Article 307 EC - Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union - Investment agreements entered into by the Republic of Austria with the Republic of Korea, the Republic of Cape Verde, the People’s Republic of China, Malaysia, the Russian Federation and the Republic of Turkey.

16. EU – WTO - Liability

• C-120/06 P. C-121/06 P FIAMM v Council and Commission

• Appeals - Recommendations and rulings of the World Trade Organisation (WTO) Dispute Settlement Body - Determination of the Dispute Settlement Body that the Community regime governing the import of bananas was incompatible with WTO rules - Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports of certain products from various Member States - Retaliatory measures authorised by the WTO - No non-contractual Community liability - Duration of the proceedings before the Court of First Instance - Reasonable period - Claim for fair compensation.

The Lisbon Treaty

Lisbon Treaty

• NOW• Treaty on

European Union• Treaty establishing

the European Community (EC)

• EURATOM

• AFTER LISBON• Treaty on European Union

(TEU) – values, objectives (internal market), subsidiarity, institutions, enhanced cooperation, external action and CFSP

• Treaty on the functioning of the European Union (TFEU)- changed EC Treaty + old III pillar

• EURATOM – aligned with TEU and TFEU, but separate

Back in 2001 - The Laeken Declaration

• How to clarify, simplify and adjust the division of competences between the Union and the Member States?

• How to increase the democratic legitimacy, transparency and efficiency of decision-making in the Union?

• How to simplify the Union’s overly complicated instruments of action?

Reflecting reality

• Non-discrimination becomes the value of the EU (Article 2 TEU)

• Preamble “economic and social progress”• Highly competitive social market economy, aiming at full

employment and social progress (article 3 TEU)• Cross-sectorial clause (Article 9 TFEU) – promotion of

high level of employment, social protection, fight against social exclusion

• In the Union and relations with outside world – sustainable development (Articles 3 TEU, 11 TFEU)

Who does what ? Still “ever closer Union among the

peoples of Europe”…but

• …Competences may also be reduced in future IGC (Declaration 18 to TL) and MS can leave the Union (Article 50 TEU)

• Principle of conferral (Articles 4-5 TEU, 7 TFEU)

• Reason to have clear division of competences (Articles 2 - 6 TFEU)

EXLUSIVE COMPETENCE

Customos

SHARED COMPETENCES (principal areas)

EnergyFreedom security and justicePublic healthResearch and technological developmentSpaceDevelopment cooperationHumanitarian aid

Internal marketSocialCohesionAgricultural and fishers (except where exclusive)EnvironmentConsumer protectionTransportTrans-European networks

EXCLUSIVE COMPETENCE

(exhaustive)

Customs Union

Competition

Monetary

Marine resources

Commercial policy

International agreements (AETR)

SUPPORT ACTIONS

(exhaustive)

Human Health

Industry

Culture

Tourism

Education, sport

Civil protection

Administrative cooperation

Catalogue of competences

Competence – flexibility clause

• Article 352 TFEU – wider scope than current Article 308 – covers all Union policies except common foreign and security policy

• Strict conditions – unanimity in Council, consent of EP

• Less frequent use in future – since direct legal basis

• No harmonisation where the Treaty excludes harmonisation

More democracy

• Reinforcement of European Parliament - Election, not approval of Commission

President, reflecting the EP elections - Budget – co-decision on all expenditure- International agreements – assent in most cases- Possibility to submit proposals for IGC- Extension of powers in comitology

Democracy

• Citizen’s initiative (Article 11 (4) TEU)

• Transparency (Article 11 (1-3) TEU) - Obligation of open, broad consultation with:

- Civil society

- Representative associations

- All interested parties

Delivery• New legal basis – all QMV - more than 30, examples:

-IPR, - Energy [climate change] - development of new and renewable forms of energy - AREA OF FREEDOM, SECURITY AND JUSTICE – evaluation of principle of mutual recognition, asylum and immigration, judicial cooperation- Prevention of crime- Sport - Space programmes- Solidarity clause in the event of terrorist attract

• Where unanimity? Most important - Fiscal issues, social security, CFSP, defence

Delivery - Treaty amendments

IGC

No IGC, but…Article 48 (6) TEU

-Unanimous European Council decision - approved by MS (constitutional requirements)

No IGC, but…Article 48 (6) TEU

-unanimous European Council decision -Consent of EP- a national parliament can veto

No IGC and…In special cases

-Unanimous European Council decision

All areas Part III of TFEU – Union policies and internal actions(internal market)

All areas (not defence and military implications

Only specific areas(CFSP, environment, protection of workers etc.)

Unanimity into QMVSpecial to ordinary

legislative procedure

QMV in the Council

Until 2014 - Current rules

255 votes cast – Commission proposla/345 votes cast – other cases

+

Majority of MS

+

62% population (on request of MS)

TRANSITION PERIOD

1) Until 31/03/2017 a MS can ask to apply current rules

2) Ioannina compromise 2014-2017.) If ¾ MS or ¾ of MS population of blocking minority ask for this procedure, the Council must try to reach a consensus to satisfy their concerns

3) Ioannina compromise can go beyond 2017

From Nov. 2014

On prop Commission or High Representative

55% MS

+ at least 15 MS

+ 65% population

Blocking minority – at least 4 MS

(FR,UK, DE+), (DE, FR, IT,+), (DE, FR,SP,+) etc.

Simplification

• EU – no more EC, 3 pillars integrated

• One legal personality for the EU - EC

Legal acts Binding Non-binding Legislative Non-legislative (executive)

Regulations, Directives

X X X

Decisions X X X

Recommendations, Opinions x

INSTITUTIONSThe President of the European Council• Shall ensure the preparation and continuity of

the work of the European Council in cooperation with the President of the Commission

• Facilitate cohesion and consensus within the European Council

• Shall represent a report to the EP after each meeting of the European Council

• Cannot hold a national office• At his level,…ensures the external

representation fo the EU for the CFSP

The Presidency of the Council• Presidency – TROIKA -3 MS for 18 months

Sectorial CouncilsChaired by Representative of the Presidency

GENERAL AFFAIRS COUNCIL

Chaired by Representative of Presidency

FOREIGN AFFAIRS COUNCIL

Chaired by High Representative

POLITICAL AND SECURITY COMMITTEE

Chaired by (Representative) of the High

Representative

COREPERChaired by

Representatives of the Presidency

Sectorial GroupsChaired by Represenatives of the Presidency

Sectorial GroupsChaired by Represenatives of H.R.

Sectorial GroupsChaired by Represenatives of H.R.

EU external representationUS v EU

US President

The President for European Council for CFSP

Commission President

High Representative?

US Secretary of State

High Representative for CFSP – “conducts” policy, represents at the conferences, international organisations….

The Commission

High Representative? – responsible for external relations

US Secretary for Transportation

The CommissionRelevant Commissioner?High Representative ?

European Parliament• 751 (736) seats, now 736 • Losers – Germany (-3)• Winners – Bulgaria (+1),Spain (+4),France (+2),Italy

(+1),Latvia (+1), Malta (+1),Netherlans (+1),Austria (+2),Poland (+1), Slovenia (+1), Sweden (+2), UK (+1)

• Now “phantom MEPs” – 18 elected, but observer status, increase to be ratified by MS

• 3 German MEPs will stay until the end of the present legislatureGermany 96 (currently 99)France 74 (currently 72)UK 73 (currently 72)Italy 73 (currently 72)Spain 54 (currently 50)

Main implications

• New comitology arrangements – new division between delegated and implementing acts

• Enforcement - Shorter penalties procedure for Member States (current Article 228 EC), possible penalties already in infringement procedure (current Article 226 EC)

• Changed legal basis (intellectual property rights, administrative cooperation, professional qualifications, sanctions)

New numbers

• Article 43 – freedom of establishment - 49 TFEU• Article 49 – free movement of services - 56

TFEU• Article 56 – free movement of capital - 63 TFEU• Article 226 – infringement procedure - 258 TFEU• Article 228 – penalties’ procedure - 260 TFEU• Remember to refer to new numbering• No need to reissue/reconsult LFN or RO

The national parliaments : ‘greatest winners’ of the Lisbon

Treaty?

Article 12 TEU + Protocols n° 1 & 2

National parliaments contribute actively to the good functioning of the EU:

• Through being informed

• Through seeing to it that the principle of subsidiarity is respected

• By taking part in certain freedom, security and justice matters, in treaty revision, and in applications for accession

• By taking part in interparliamentary co-operation

Information

• Aim: enhance control on national executive• More democratic legitimacy• Better transposition / implementation

• Protocol to Amsterdam Treaty:• Consultation documents (Green / White Papers)• Draft legislative proposals (+ 6 weeks stand-still)

• Lisbon Treaty:• Direct transmission by the Commission• 8 weeks stand-still for legislative proposals• Also transmission of Council agenda’s & minutes

Policy Dialogue

• Commission’s ‘Citizen’s Agenda’ (May 2006): Commission sends draft legislative proposals, inviting national parliaments to respond

• To date, almost 600 opinions (including on MARKT proposals), not limited to subsidiarity / proportionality issues.

• Commission sends replies (co-ordination: SG unit G3)

• Aim: reaching out to national stakeholders / citizens. Evaluation ongoing

What’s NEW: the early warning system • Aim: subsidiarity control

• National parliaments issue a reasoned opinion within the 8-week stand-still period

• Yellow-card:– Challenge by 1/3 of national parliaments– Proposal must be reviewed (maintained, amended, withdrawn)

• Orange card:– Challenge by ½ of national parliaments– If Commission maintains proposal, legislator decides before 1st

reading (majority of votes in EP or 55% vote in Council can stop proposal)

• (Likely) impact in practice ?

E-mail bartlomiej.kurcz@ec.europa.eu