1. History and Nature of Ec Law
EU LAW I – Prof. De Mestral Fall 2004
1. history and nature of ec law
1.1 Introduction
1.2 Definition of EC Law – Development of Treaties
1.3 Historical Development from EC and Maastricht Treaty
1.4 The Nature of the EC as an ‘Institution’ – Does the classic model of intergovernmental organizations apply to the EC?
1.5 Economic goals are enshrined in the economic union
1.5 The nature of these economic and political obligations
2. ec institutions
2.1 Introduction
2.2 European Community Bodies
2.3 Derivation of the Powers of the Institutions
3. scope of community powers
3.1 Introduction
4. Community legislation and policy-making
4.1 Introduction
5. nature and effect of ec law
5.1 Introduction
5.2 Direct Effect of Treaty Provisions
Case 26/62 van Gend en Loos (1963)
Case 2/74 Reyners v. Belgium (1974)
5.3 Direct Effect of Regulations and Decisions
Case 39/72 Commission v. Italy (1973)
Case 50/76 Amsterdam Bulb BV (1977)
Case 9/70 Franz Grad (1970)
Reasoning:
5.4 International Treaties
Cases 21-24/72 International Fruit Co. (1972)
Case 41/74 Van Duyn v. Home Office (1974) (Art. 39, 234, 249)
Marshall (No.1) (1986)
Marleasing SA (1990) (Art. 10 & 249)
CIA Security
6. supremacy principle
6.1 Introduction
6.2 Supremacy of EC Law From the ECJ’s Perspective
van Gend en Loos (1963) (Art. 5, 7, 249 & 25 DE)
Flaminio Costa v. ENEL (1964) (Art. 10, 12, 234)
Internationale Handelsges.m.b.H. (1970)
Simmenthal SpA (1978)
Larsy v. INASTI
R.v. Secretary of State for Transport, ex parte Factortame (1990)
6.3 Supremacy of Community Law From the Perspective of the Member States
Internationale Handelsges. m.b.H. [1972] CMLR 177
Solange I decision (1974, BVerfG)
Solange II decision (qualified Solange I a bit)
Brunner v. The European Union Treaty [1994] 1 CMLR 57
Shields v. Coomes
Macarthys v. Smith
7. fundamental human rights
7.1 Introduction
7.2 Fundamental Rights and General Principles as Binding on Community
Brunner Case [1994] – Fed Con Crt Germany
International Hangdelsgellschaft [1970]
7.3 Sources of FR derived by the ECJ
Nold v Commission [1974]
Hauer v Land Rheinland-Pfalz [1979]
AM & S [1982]
7.4 Standard of Protection for EU FR
7.6 Do general principles of Community law bind member states?
Johnston v Chief Constable [1986]
Kent Kirk
Wachauf v Germany [1989]
Cinetheque
Familia Press
7.7 FR and role of political institutions
7.8 Charter of Fundamental Rights
Accession to the ECHR
Opinion on Accession to ECHR [1996]
8. general principles
8.1 Introduction
Matthews
8.2 General principles of EC law
R v Minister for Agriculture [1990]
Mulder [1988]
9. enforcement of ec law against member states
9.1 Introduction
Article 226 (Enforcement Procedure)
9.2 Operation of the Procedure
9.3 Discretion of the Commission
9.4 Admissibility of enforcement after breach is remedied
9.5 Types of Breaches by MS of Community Law
9.6 State Defences in Enforcement Proceedings
9.7 Art. 227
9.8 Interim Measures
10. preliminary rulings
10.1 Introduction
Art 234 (Preliminary Ruling Procedure)
10.2 Three types of preliminary ruling procedure
10.3 Provisions which can be referred
10.4 The courts or tribunals to which article 234 applies
C.Broekmeulen, case 260/80
10.5 The existence of a question: the development of precedent
Da Costa, case 28-30/62
CILFIT, case 283/81
International Chemical Corporation case 66/80
Firma Foto-Frost, case 314/85
10.6 The existence of a question: the ‘acte clair’ doctrine
CILFIT case 283/81
10.7 The existence of a question: the development of a more hierarchical judicial system
10.8 The decision to refer: the national courts’ perspective
H.P. Bulmer v. J. Bollinger case [1974] 2 WLR 202
Samex case [1983] 1 All ER 1042
R. v. Plymouth Justices [1982] 3 WLR 1
10.9 When will the ECJ Accept Referrals?
Firma C. Schwarze, case 16/65
Costa case 6/64
Simmenthal, case 35/76
10.10 The reference to the ECJ: the foundations of the Court’s Authority over the cases referred to it
Pasquale Foglia case 104/79
Pasquale Foglia case 244/80
10.11 The reference to the ECJ: developing control over the Article 234 procedure
Lourenco Dias, case C-343/90
Telemarsicabruzzo, case C-320-322/90
11. review of legality
11.1 Introduction
11.2 Range of reviewable acts under 230
11.3 Principle of Standing under Art. 230
11.4 Art. 230(4): General standing rules for non-privileged applicants
11.4 Standing for non-privileged applicants in particular areas
Metro, case 26/76
11.5 Art. 230: Direct concern
11.6 Action of Damages
11.5 Application of EC LAW – Remedies in national courts
11.5.1 Introduction
11.5.2 The basic principle of national procedural autonomy
Rewe-Zentralfinanz (1976)
Rewe Handelsgesellschaft (1981) (Art. 234) (Purchase of tax free butter under German law were contrary to EU law & sought remedy for econo interests)
San Gorgio
11.5.3 Requirements imposed by EC law
Saguolo (1977) (Art. 12 National treatment)
Von Colson (1984)
R. v. Secretary of State for Transport (1990)
Dekker (1990)
Emmott v. Minister for Social Welfare (1991)
Marshall (No.2) (1993)
Steenhorst-Neerings
R.. v. Secretary of State for Social Security
Metallgesellschaft & Hoechst
Van Schijndel
Kraaijeveld
Dionysios Diamantis
Edis
Levez
11.5.4 The Principle of (state) liability for breach of EC law
Francovich v. Italy (1991)
Brasserie du Pecheur v. Germany (1996)
12. Free Movement of Goods: Duties, Charges and Taxes
12.1 Introduction
12.2 Abolition of customs duties and charges with equivalent effect (art. 23-25)
12.3 Discriminatory tax provisions (art. 90-93)
12.4 Taxation
12.5 Boundary between articles 23-25 and 90-93
13. Free Movement of Goods: quotas and other
quantitative restrictions
13.1 Introduction
Article 28
Article 29
Article 30
Directive 70/50 and Dassonville
Dassonville, case 8/74
13.2 Discriminatory barriers to trade
Commission v. Ireland case 249/81
Commission v. UK case 207/83
Commission v. Ireland, case 45/87
Van Tiggele, case 82/77
Schloh case 50/85
13.3 Justifying Discriminatory Barriers to Trade: Article 30
Henn and Darby case 34/79:
Conegate case 121/85
Cullet case 231/83
Campus Oil case 72/83
Sandoz BV case 174/82
13.4 Indistinctly applicable rules: Cassis de Dijon
Rewe-Zentrale AG case 120/78 (Cassis de Dijon)
13.5 Indistinctly applicable rules and Article 29
Groenveld case 15/79
13.6 Indistinctly applicable rules: the limits of Article 28
Cinétèque (1985)
Torfaen BC v. B&Q case 145/88
Criminal Proceedings against Keck, case C-267-268/91
Familiapress case C-368/95
Konsumentombudsmannen case C-34-36/95
Gourmet International Products, case C-405/98
TK-Heimdienst, case C-254/98
13.7 Indistinctly applicable rules: the mandatory requirements
Commission v. Germany case 178/84
Commission v. Germany, case 178/84
Commission v. Denmark case 302/86
13.8 Broader perspectives on Cassis
13.9 Conclusion
14. Free Movement of workers and people
14.1 Introduction
Art. 39 (ex 48)
Roman Angonese v. Cassa di Riparmio di Bolzano SpA (2000)
14.2 Definition of “worker”
Levin v. Staatssecretaris van Justitie (1982)
Steymann v. Staatsecretaris van Justitie (1988)
14.3 Individuals seeking work
R. v. Immigration Appeal Tribunal, ex parte Antonissen (1991)
14.4 Discrimination
Groener v. Min. of Education (1989)
14.5 Public Service Exception
14.6 Formal requirements for workers
14.7 Scope of article 39: impediment to market access and wholly internal situation
14.8 Substantive rights and social advantages
14.9 Education
14.10 Citizenship
15. freedom of services and right to establishment
15.1 Introduction
15.2 Persons, services, and establishment: differences and commonalities
Gebhard case C-55/94
Secondary legislation governing entry and residence
Directive 73/148
The ‘official authority’ exception
Reyners v. Belgium, case 2/74
Are the freedoms horizontally applicable?
Walrave and Koch, case C-281/98
Wouters, case C-309/99
15.3 The right of establishment
Art 43 EC
The effect of Article 43
Reyners, case 2/74
Thieffry, case 71/76
Heylens, case 222/86
Vlassopoulou, case 340/89
Council Directive 89/48:
Legislative harmonisation and mutual recognition of qualifications
The scope of Art 43
Commission v. Belgium, case 221/85
Klopp, case 107/83
Gebhard, case C-55/94
Knoors, case 115/78
Bouchoucha, case C-61/89
Meussen, case C-337/97
Commission v. Italy, case 63/86
15.4 Establishment of companies
Art 48 EC:
Commission v. France case 270/83
R. v. HM Treasury, ex parte Daily Mail, case 81/87
Centros, case C-212/97
15.5 Free movement of services
Art 49 EC
Art 50
Gebhard, case C-55/94
Van Binsbergen, case 33/74
Scope of Article 49
Debauve, case 52/79
Luisi and Carbone, case 286/82 – 26/83
Deliège, case C-51/96
Belgium v. Humbel, case 263/86
Kohll, case C-158/96
Geraets-Smits/Peerbooms case C-157/99
Koestler, case 15/78
Grogan, case C-159/90
Schindler, case C-275/92
Commission v. Italy, case 63/86 (1988)
Cowan, case 186/87
Justifying restrictions on the free movement of services
Lawyers’ Services, case 427/85
Alpine Investment, case C-384/93
16. public policy, security and health derogations
16.1 Introduction
Directive 64/221
16.2 The discretion of the member states
Van Duyn v. Home Office, 1974. case 41/74
Adouri and Cornuaille, case 115-116/81
Rutili, case 36/75
Bonsignore, case 67/74
Bouchereau, case 30/77
Royer, case 48/75
Pecastaing, case 98/79
Yiadom, case C-357/98
17. equal pay of men and women
Art 141 EC
Defrenne v. Sabena,1976, case 43/75
Schroeder, 2000, case C-50/96
Part I: EU institutions, law-making, judiciary and fundamental principles
1. history and nature of ec law
1.1 Introduction
Themes:
- Regional Integration: common worldwide, but European manifestation unique b/c so extensive.
- InstitutionBuilding: need institutions to support the integration. How effective are these institutions?
- Rule of Law: expand market through law-making. Using rule of law to build new community.
- Supranationality: voluntary creation of institutions that are above nation-state, and have supremacy over national law.
- Constitution: text of unifying values that can be understood by average person. Involves codification, but also ongoing interplay of strength of various members.
1.2 Definition of EC Law – Development of Treaties
Three pillars:
- Economic pillar (TEC)
- Foreign policy (TEU)
- Justice & home affairs (immigration, policy cooperation, border controls) (TEU)
First Pillar: Treaty of the European Community (TEC)
Treaty of Rome, (1957)
- Started as limited economic union based on customs union (free movement of goods and coordinated border), and later also included monetary union and economic union.
- Included France, Germany, Italy, Luxembourg, Belgium, Netherlands
Second & Third Pillars: Treaty of the European Union (TEU)
Maastricht Treaty of EU (1993), w/ amendments by Amsterdam (1997) and Nice (2000) Treaties
- Maastricht Treaty created second and third pillars
- Amsterdam Treaty amended Maastricht treaty to more closely link third pillar w/ second pillar
- Nice Treaty did not change nature and structure of second and third pillars.
Notes:
- First pillar most supranational in nature, second most resembles international law, and third is hybrid of the two.
- Now engaged in process to merge 2 treaties.
Three conflicting visions of community:
1.French vision of European superstate, w/ ultimate power at Community level.
2.German federal vision of loose federation w/ respect for national decision making and only some powers reserved exclusively for the community
3.British vision of looser, mostly economic association w/ deep respect for sovereignty
1.3 Historical Development from EC and Maastricht Treaty
In many ways the Maastricht treaty is the final step in the process begun in the 1950s.
Proposals began after WWII: prime movers were the French and Germans who felt that a new economic and political framework was needed if future Franco-German conflict was to be avoided. Almost immediately following WWII, the Cold War began which further encouraged the objective of unification (eur. unification vs. USSR; as well as added the US's encouragement of this objective)
3 approaches to the academic debate:
(i) pragmatists: need to pull together some sort of European Union
(ii) federalists: need a Federation of European States
(iii) constitutionalists: higher than a federation need a genuine state of Europe.
1947 creation of GATT: with its aim to lower tariff barriers on an international level
1948 Council of Europe: is founded. Its membership was open to all Western Democratic nations. Essentially, the Council was composed of 2 parts: (1) Union of Parliamentarians, basically set up for debate; and (2) the European Convention on Human Rights.
1949 Benelux Treaty: still in force today, it created a free trade agreement between Belgium, Holland, and Luxembourg based on a customs union and some commitment to achieve basic economic goals.
1950 Robert Schumann Plan: Schumann wanted progress on the economic front and wrote that a Coal and Steel Community should be developed first
1950: creation of the organization for European Economic Cooperation. Its creation was influenced by the Marshall Plan of 1947. It had a broadly based membership, which included Canada and the US. Essentially an intergovernmental organization which coordinated policies but was not a decision-making organization.
April 1951 Treaty of Paris: which established the European Coal and Steel Community(ECSC) to create a common market for those commodities. Six founding countries: Belgium, France, Germany, Italy, Luxembourg and the Netherlands. Based on the Schumann Plan of 1950.
This endeavour consisted of 5 organs:
(1) a permanent executive (the High Authority)
(2) a consultative committee attached to the High Authority (consisting of representatives of employers, trade unions and consumers)
(3) a Special Council of Ministers
(4) an Assembly
(5) a Court of Justice whose decisions were binding on the Member States
Lasok explains that the most important feature of the ECSC is that it is truly a supranational organ. The ECSC proved that a supranational institution could function despite diverse national interests. Note that problems did occur in the ECSC: i.e. there was a crisis in 1959 due to the overproduction and increase in the use of oil which rendered coal mines redundant; the Council of Ministers refused to sanction measures to finance the stock-piling and the decrease in production because of their national interests.
Nevertheless the ECSC was a success, so founding members expanded the agreement with the: March 1957 Treaty of Rome.
1954: The European Defence Treaty (to have supranational control of the armed forces) failed in 1954 and defence was then undertaken by NATO
1955: meeting of the Foreign Ministers of the 6 members of ECSC resulted in the Messina Resolutions which dealt with:
(1) community of liberalization of trade (pursuing the concept of economic union)
(2) special community with respect to research (etc) on atomic energy
1956: Spaak Report which contained 2 concrete proposals for 2 new communities based on the Messina Resolutions. Very much based on the model of the ECSC (in terms of the High Authority and the Court). Discussion of actual vesting of authority in a community institution, thus, going beyond mere intergovernmental cooperation.
March 1957 Treaty of Rome: drafted; Came into force Jan 1 1958. Established the EEC, which was to remove all tariffs and quotas among member states by 1968.
This treaty created 2 new communities:
(1) the European Atomic Energy Community (EAEC): aim was to develop nuclear energy, distribute it within the community, and sell the surplus to the outside world.
(2) the European Economic Community (EEC)
The Merger Treaty: it was clear that 3 assemblies were not necessary (ECSC, EEC, EAEC), the Merger Treaty instituted a single commission and a single council (as opposed to the parallel institutions). The European court being responsible for all 3.
Other Western European countries eventually joined: the U.K., Denmark and Ireland in 1973 (the 1st Treaty of Accession was signed by these 3 in 1972); Greece in 1981; and Spain and Portugal in 1986.
Despite the removal of tariffs, a complex web of non-tariff barriers continued to hamper trade among EC members. Further integration was argued for in order to revive the sagging EC economies.
1970, 1975- Budget Treaties: as the Community developed, the major issue became whether the Community should have it own direct budgetary resources (that is, should it have the capacity to tax) or not. With the Budget Treaties, certain moneys go directly to the Community: (i) custom duties, and (ii) 1% of VATS in each member state.
1976- direct elections
1976- Tindemanss Report: postulated a gradual development towards European Union, envisioned the closer cooperation of Member States; it failed.
1984- the European Parliament adopts the "Draft Treaty Establishing European Union", thereby reviving the notion of European Federalism. This triggered off a reaction which ultimately resulted in the passing of:
February 1986 Single European Act: called for greater economic and monetary union, although it did not spell out how to achieve it. More concretely, the act established the goal of a single market by the end of 1992. To ensure the free movement of people, goods, services and capital as of Jan. 1, 1993, directives to harmonize standards in the community cover new jurisdictions, including environmental law, immigration control.
Article 1 of the SEA makes it clear that the objective of all the Community treaties is to contribute together to making concrete progress towards European Unity (from Opinion 1/99 EFTA case).
Rhonda/Suzy described SEA as one of the landmarks in the long road towards European Union. The main merit being that it's simultaneous reform of the 3 treaties establishing the 3 communities, as it further advanced the concept of one community. It is an important landmark in EC law itself as well as being a catalyst for the major legislative effort to secure a genuinely free common market by 1992. It also provided the impetus for complex and ambitious new negotiations on monetary and economic union within the EC.
December 1991 Maastricht Treaty: was signed by the leaders of the 12 EC member countries to expand the role of the EC beyond its current trade and economic issues. In providing for a single European currency and co-coordinated financial policies under one central bank sometime between 1997 and 1999, it outlines the mechanism of how the EC will achieve its long-stated goal of economic and monetary union (EMU).
There is the qualitative change with the Maastricht treaty from a common market to a single market.
Article 2 speaks of the harmonization of policy on the economy: "common policies", "a harmonious and balanced development of economic activities", "economic and social cohesion and solidarity among Member States".
The political dimension of the proposed treaty can be seen in Title V (article J.1 "The Union and its Member States shall define and implement a common foreign and security policy, governed by the provisions of this Title and covering all areas of foreign and security policy.") DeMestral stated that this political commitment is less strict than other commitments (i.e. economy) and that it is just the groundwork, the beginning of cooperation in a political dimension.
According to Prof. Garon this introduced a "politique commune generale", which distinguishes Maastricht and what makes it important.
DeMestral also referred to art. 1 saying that it speaks to the people, not just to states and governments.
The Treaty cannot come into force until its 12 signatories ratify it. Luxembourg, Greece, Ireland, and France have done so. Belgium's lower house has approved the treaty. In June, Danish voters rejected the treaty (however, the Danes have since made conciliatory notes in that now they say that they are prepared to vote again).
National opposition to deeper integration: In calling for joint foreign, defence, health and consumer protection policies, among others - in effect, political union -the treaty has collided with nationalistic fervour. The concern that Community institutions are remote and unaccountable was reflected in the large NO vote (48.95%) in France, but also has been increasingly reflected in other EC countries.
1.4 The Nature of the EC as an ‘Institution’ – Does the classic model of intergovernmental organizations apply to the EC?
No.
The Classic Model: members are sovereign states that are involved in discussions and negotiations. Member states can say no at any point. The international organizations exist to discuss, not to tell their members what to do.