EU SHORT NOTES

TREATIES
28 Member States working for Peace and Prosperity. Robert Schuman (French Foreign minister) Idea on 9th
May 1950 after second world war. To control Coal and Steal to prevent further war. Founding members were
Germany, Italy, France, Belgium, Netherlands and Luxemburg. European Coal and Steel Community (ECSC)
created via Treaty of Paris in 1951, intention to create Common Market in Coal and Steel; Supranational
Institution was born. Originally called for a Common Market (now referred to as INTERNAL MARKET). 1951
two further Communities proposed by Belgium; European Atomic Energy Community (EurAtom) via Treaty of
Rome 1957and European Economic Community (EEC)

1957 - Treaty of Rome (ToR) Common Market = Free Movement of Goods, Supranational Institutions
established= EEC + EurAtom

1965 - Merger Treaty (MET) - Council of Ministers, EEC + EurAtom = European Community (EC)

1970-1975- 1st and 2nd Budgetary Treaties + Court of Auditors

1979 First Elected EC Parliament

1981- UNANIMITY: Veto Power (Member States can say NO) and a MS that not bound by what it votes against,
decision making in the shadow of the VETO. QUALIFIED MAJORITY: any country overruled and bound by
decision if voted by majority. Voting weights are allocated under A 238 TFEU, Votes allocated according to
population of each country 345 Votes among 27 nations and 258 required for a QMV

1986- Single European Act (SEA) = Parliament more powers (unanimous agreement of EUP the COMM had to
pass)

1989- Court of first Instance (now called General Court of the EU)

1992- Maastricht Treaty (Treaty of EU or MAT) + EC changed to EU + Citizenship Articles added + Euro
introduced

1997 Treaty of Amsterdam (TOM) Powers to EUP + Environmental Areas covered + Transparency of EU

2003- Treaty of Nice (TON) Commission size reduced

2007 Treaty of Lisbon (TOL) came to effect 2009 + TEU changed to TFEU + EU Council and EU Central Bank
created

2010 The Fiscal Compact Treaty economic crisis + Bail outs + fiscal compact policies signed except Czech
Republic (Pringle V Ireland challenged it)

INSTITUTIONS OF EU
The Commission (A 244- 250 TFEU) = legislations + policies + delegate + watchdog + rep of EU Foreign and
Security Policy

EUP (A 223 and 224 TFEU) = elected members, sessions in Strasbourg France and other meetings in
Luxembourg and Belgium + Can VETO legislation + scrutiny other institutions

EU Council (A 13 TEU) = HOGs

The Council of Europe or The Council (previously Council of Ministers) = considers legislative proposals from
The Commission via a QMV

The European Central Bank (ECB) = monetary policy of EU

CJEU Court of Justice of the European Union = Court of Justice + General Court + Civil Service Tribunal

SOURCES OF LAW
PRIMARY SOURCES = All the existing functional Treaties (ECSC / ECT/EURATOM/Merger T/ Budgetary
Treaties/ Treaties of Accession/ SEA/ TEU/ T of Am/ TON/ TOL which are TEU and TFEU

SECONDARY SOURCES: Regulations+ Directives+ Decisions

LEGISLATION PROCEDURES
COMM initiates + The Council Creates (main body for legislation) + EUP votes on it (Ordinary Legislative
Procedure via A. 289 & 294 TFEU)

[COMM (proposes legislation) -> EUP opinions (1st reading) -> Council (either REJECT or APPROVE
amendments by EUP) and can take COMMON POSITION and replace the original proposition of #COMM ->
EUP has 2nd Reading + Amendments (back to Council) or accept or VETO -> Council approves amendments and
passes Legislation# -> Council can reject EUP 2 times only then pass]

COURTS OF EUROPEAN UNION (CJEU)

CJEU Court of Justice of the European Union = Court of Justice + General Court + Civil Service Tribunal (Court
of Auditors etc)

A 267 TFEU Preliminary Ruling Jurisdiction = When National Court challenges = Point of EU Law Needs Clarity
+Question of validity of EU Law Application (De Costa PRJ is backbone of uniform legal order). Nordsee
102/81- EU law to define what is a court or tribunal for the purposes of A 267 TFEU. Bulmer v. Bollinger
[1974]- Lord Denning said that a reference to the ECJ is only required where the point of EU law is decisive for
the case and after the domestic court has established the facts. Court or tribunal from which there is no appeal
must refer points of EU law to the ECJ Compulsory Reference. CILFIT 283/81, ECJ said courts of last instance
did not have an obligation to refer if the point of EU law was not determinative of the case ECJ has recently
ruled on the essential point or where the matter is acte clair, that is, the point of EU is beyond doubt. Morge
v. Hampshire County Council [2011]- Supreme Court held that it was unrealistic to suppose that the ECJ
would feel able to provide any greater or different assistance than the Supreme Court itself was able to give-
refused to refer. Remedy for NC refusal to refer to ECJ can be challenged by COMM via A 258 TFEU-
Enforcement Action. Cooper v. Attorney General [2010] - makes it clear that the threshold for liability in such
cases is very high in effect, that a judge must have taken leave of his senses before liability could arise.

Hoffman-La Roche (1977)- A 267(3) TFEU is to prevent a body of national case law not in accord with EU law
from coming into existence in a MS. CILFIT (1982)- ECJ ruled that NO OBLIGATION to refer if NOT NECESSARY,
ECJ already gave a ruling on the question or where matter is Acte Clair. Acte Clair- means correct application
of EU Law so clear and obvious no scope for doubt manner in which question raised is to be resolved.

Judicial Review (JR) = A263 TFEU =Grounds + time limit+ who can utilize = Commission V Council (ERTA) 1971-
any ACT which has legal binding including Regulations, Directive and Decisions. PRIVILEGED applicants: MS +
the Council + Commission + EUP (since TON). SEMI_PRIVILEGED: bring action to protect their prerogatives=
Court of Auditors + ECB and Committee of Regions. NON-PRIVILEGED: (natural and legal persons) may bring
review proceedings where challenged act is; act addressed to applicant (usually in Company competition
proceedings) or regulatory act addressed to another person (must show direct concern to themselves).
Plauman 1962- test of CLSOED GROUP now changed via UPA V Council (2002)- Advt.Gen. Jacob proposed new
TEST for Individual Concern saying previous test violated Union law principle of Effective Judicial Protection.
New test said Individual concern found where substantial adverse effect on the persons interests is
established.

DOCTRINE OF DIRECT EFFECT

[Vertical DE = IND V MS] = van Gend en Loos (1963), DE only applied if Treaty Article: was CLEAR and PRECISE/
if it was UNCONDITIONAL / TIME limit for implementation of DIR must have passed / Action based on DE of
the DIR can only be VERTICAL- against an emanation of the state / its operation did NOT require LEGISLATIVE
implementing measures from the MS

[Horizontal DE= IND v IND] = Defrenne v SABENA (No. 2) [1979] - - The Directive must give clearly identifiable
rights to individuals.

REGULATIONS: directly applicable in MS hence automatically become part of NL and individual can rely at
NC = DE. Azienda Agricola (2001)- for REGULATIONS to have DE must satisfy 3 conditions: Clear and precise
and sometimes need further legislations (Italy V Commission 1973)

DECISIONS: are binding on to whom its directed at and ECJ has held they are then capable of DE (Grad V
Finanzamt 1970)

DIRECTIVES: A 288 TFEU - Van Duyn v Home Office [1974] - The UK government was attempting to exclude
Van Duyn, a Dutch national, from the UK because of her membership of an undesirable organisation, the
Church of Scientology. Part of this case looked at whether Directive 64/ 221/ EEC could be directly enforced
by Van Duyn. Legal principle in order for a provision of EU law to have direct effects, it must: be clear and
precise; be unconditional/ without exceptions; not require any implementation by the Member States.
Werner Mangold 2005- CT went around the issue of DIR only having VDE, by stating that NC guarantee the
full effectiveness of Gen Principle by setting aside NL (giving wide definition of the STATE and extending reach
of VDE of DIR). Foster v British Gas [1990] CJ said control of the State; has special powers given to it by the
State, perform public service if so = emanation of the STATE.

INDRIECT EFFECT OF DIRECTIVES: NCs have OBLIGATION to follow the EU LAW or interpret NL in light of EUL.
von Colson V Land (1984) female social workers used Equal Treatment Directive of EU against NL [the von
Colson Principles]. Marleasing SA V La Commercial (1990)- IT is important that a national law EXISTS. Litster
v Forth Dry Dock [1989] - concerned Directive 77/ 187/ EEC, which was intended to protect workers who were
dismissed as a result of a transfer of a business, House of Lords (now the Supreme Court) decided that they
had to construe the UK Regulations in such a way that it accords with the decisions of the European Court
upon the corresponding provisions of the Directive to which the Regulation was intended to give effect.
Criminal proceedings against Luciano Arcaro (1996)- Court held the DOC cannot be applied where it would
give rise to or aggravate Criminal Liability BUT can be applied where there is Civil Liability ( Centrosteel V
Adipol (2000) ). Webb V EMO Air Cargo (1994)- she asked for Sex Discrimination Act 1975 to be interpreted
in light of Equal Treatment Directive of EU.

REMEDIES OF EU LAW
ADMINISTRATIVE JUSTICE: Proportionality- only use means to achieve what is necessary (R V Intervention
Board of Agriculture), Legal Certainty Legitimate Expectation, non-retroactivity and res judicator (final
judgment cannot be challenged, Procedural Rights- GP of law developed by ECJ can be used as grounds for JR
challenge community acts, Natural Justice (A 6 ECHR)- (Hoffman la Rouche ), Duty to give Reasons, Due
Process and Right to protect Self-incrimination. EQUALITY: unless objectively justified treated same (A 18
TFEU + etc.). SUBSIDIARY: things not achieved better at MS level achieved at by UNION (A 5 TEU).
EFFECTIVENESS: DE + IDE + State L = effectiveness of EU law. CERTAINTY: Maximalist Approach (HR upheld at
MS upheld at Union level) + Minimalist approach (HR common to all MSs).

A 263 TFEU- INDIVIDUALS can enforce EU law via JR, DAMAGES against institutions via A 268 & 340 TFEU. Ex
parte Factortame ltd (1990): stated NL remedies for breach of Community law should be ADEQUATE and
EFFECTIVE. Form this case Union Law was supreme and sets aside NL in contravention of the wording and
spirit of the treaty and laws of EU and later extended even to INJUNCTION actions against the Crown (M V
Home Office 1994). UNECTEF V Heylens (1987)- National Authorities have a requirement to give reason for
their decisions in regard to community law rights. MS cannot rely on their failure to implement a DIR against
an individual (Emmot 1991). DEB V Germany (2010)- after TOL EU Courts step in to ensure effective Justice
with regards to National Regulations and rules and that a company is a LEGAL PERSON (A 6 ECHR and A 47 of
Charter).

STATE LIABILITY FOR BREACH

[DIRECTIVE IMPLEMENTATION FAILURE BREACHES] Francovich v Italy [1991]- CJ set conditions for when DIR
implementation breach can be found; DIR gave RIGHTS to individuals, rights are IDENTIFIABLE within DIR and
CAUSAL LINK between failure to implement the DIR and damage caused. Ex parte Factortame (1996) /
Pecheur v Germany- now SL extended to other Community Law provisions whether or not they had DE. Not
strict liability BUT if sufficient and serious breach the state will pay damages IF; DIR gave RIGHTS to
individuals, breach is SUFFICIENTLY SERIOUS and CAUSAL LINK between failure to implement the DIR and
damage caused. Factortame (No3)- extended Frankovich to UNIMPLEMENTED DIRs. British Telecom plc
(1996)- procedure for bringing an action for damages against the state will be governed by National Rules. In
this case the wordings of the DIR were not clear and other MSs also failed to implement the DIR so no SL.

SUPREMACY OF EU LAW
Van Gend en Loos (1963)- ECR founded the DOCTRINE of DE, Costa V ENEL (1964)- Ct said by entering into EC
Treaty, MSs had limited their sovereign rights to the Community law could not be overridden by domestic
legal provisions. Internationale Handelsgesellschaft (1970)- Ct held Community law took precedence even
over a fundamental rule of German Constitution. Simmenthal (No2) [1978]- Ct held that NCs even a lowly Ct
of 1st instance, have duty to set aside provisions of NL which are incompatible with EC Law and neednt wait
for NL to be amended in line with National Constitutional Procedures. NL set aside if it contradicted with DA
(applicable) or DE (effective) COM provision. Commission V France (1974) even if CT has overruled the NL
the MS still has to repeal the NL in conflict with EC provisions/laws. Factortame (1990)- UK CTs cannot grant
an injunction against the Crown (that is couldnt suspend an Act of parliament) but since the Act infringed the
rights of the Fisherman in violation of the EU laws, the English Rule has to be set aside (HOL granted the
injunction the fisherman claimed). TOL- attached to the treaty is a declaration that states the Supremacy of
EU Law, in wording now (Treaties have primacy over MS law...). [ UK: Factortame + Webb V EMO = EU Law
Supreme]. Thoburn V Sunderland CC (2003)- hypothetical issue if an EU measure was repugnant to a
constitutional right guaranteed by UK Law then if the ECA wording sufficient to incorporate the measure and
give it overriding effect in NL. Wunsche V Handelsgesellschaft (1987)- FCC acknowledged that COMM law now
had its own equivalent standard of HR protection. Brunner V The European Union Treaty (1994)- German
constitutional sovereignty was affirmed and had right to review the scope of COMM competence. BUT after
annulling the EU law Act GERMANY now has new implementing law from September 2009. FRANCE: MONOIST
state, EU law directly applicable hence and has 2 Court system (Judicial and Administrative). EU law so far
supreme as provided under NL. Though the Court takes each case into view and uses case law to decide so as
in Rothmans and Arizona Tobacco (1993)- damages were awarded under the Factortame principles, loss
caused by Ministerial order in conflict with EC DIR. ITALY: It too accepted Supremacy of EU Law so far as not
breaching fundamental principles of the Italian constitution (SpA Fragd ).

PROPORTIONALITY, CERTAINITY & EQUALITY

Baumbast (2002)- scrutiny on action of MS within scope of application of the treaty ... in order to protect the
right to family life of the children allowed to remain in the UK in order to continue their education. Omega
Spielhallen V Bonn (2004)-German authorities against Laser Tag company (violating basis of human dignity as
per German Law). All MSs neednt view precisely in same manner protecting fundamental rights such as
protection of human dignity. As the order prevented only specific detail of the game (shooting to kill someone)
it was not seen to be beyond proportionality. Topfer V Commission (1978)-Persons in SIMILAR situations
cannot be treated DIFFERENTLY unless difference is OBJECTIVELY justified. Prohibition of DISCRIMINATION as
per A 18 TFEU Nationality, A 157 TFEU- sex (reference to pay) and A 40(2) TFEU- producers and consumers
within EU. Royal Scholten-Honig (1978)- REG 111/77 OF 17 MAY 1977 found to be in violation of the greater
General Principle of EQUALITY, A 19 TFEU- gave rise to DIR 2000/78 and DIR 2000/43 to combat discrimination.
Werner Mangold (2005)- CJ based on General Principles of EU Law and said Age is such and discrimination
not allowed.

FREE MOVEMENT OF GOODS

A 26 TFEU- FMG, A 35 TFEU- includes movement of goods within one MS rather than crossing borders,
Commission V Italy (1968)- FM provision apply to any PRODUCT valued in money and form basis of
commercial transaction. Jersey Produce Marketing (2005)- CT held breach of A 28 & 35 TFEU requiring Jersey
potato from Channel Islands of UK, need to be part of a market agreement body such as Jersey potato Export
Marketing Board; CJ held breach of A 35 TFEU and A 30 TFEU (for having to pay the JPEB). A 28 TFEU- Creation
of a CUSTOMS union; unlike a Free Trade area, now MSs cant set their own custom duties for NON-MSs either
and must follow Custom Union Tariff (used in van Gend en Loos 1963- ) A 30 TFEU can be relied upon by
individuals before NCs. Charges having Equivalent effect to a Custom Duty (CEE) is also not allowed even if
it was not intended as a Duty but a levy; if the sum of the money has become payable because the goods have
crossed a frontier within EU (unless proven that it was payment for specific service such as providing storage
for the trader). Indamex (1973)- CEE can apply to goods imported directly from third countries. A 30 TFEU has
only 3 situations for exceptions: GENERAL BENEFIT of ALL exporters (Commission V Italy 1969), Public Health
Inspections (Bresciani 1976) and charge is for Services rendered (actual cost of example storing).

A 110 TFEU against discriminatory taxes on imports compared to domestic produce from MSs (achieving
FISCAL NEUTRALITY b/w MSs). A 110 (2) TFEU- Prohibits internal taxation that give INDIRECT PROTECTION to
domestic goods. Lutticke (1966)- DE of A 110 TFEU. SIMILAR COMPETING GOODS Commission V UK (Wine
and Beer) 1980- different raw materials and production process so Wine and Beer was held to be different,
deciding if two products were COMPETING; fulfilling same consumer needs, CT held Cheap wine
similar to Beer. Commission v Greece (1990)- indirect discrimination (have to show there is a PROTECTIVE
effect) Greek government imposed a higher tax on bigger cars, all of which were imported. Haahr Petroleum
(1997)- direct discrimination of taxes on good offloaded from ships from other countries onto Denmark as per
NL BREACH of A 110 TFEU. Delhaize (1992)- restrictions on quota of bulk export of wine and no restrictions
on domestic sales (A 34 TFEU prohibit QUANTITATIVE restrictions on imports and A 35 TFEU prohibits
restrictions on EXPORTS). DIR 70/50- Measures Having Equivalent Effect to a Quantitative Restriction
(MEQRs), A 3 of the DIR says A 34 of TFEU applies to domestic and imported products [THIS DIRECTIVE NO
LONGER IN FORCE but influential in case law]. Inaction by state can be breach of A 34 TFEU (Commission V
France 1997- not stopping activists against imports). Dassonville (1974)-Court gave WIDE definition of MERQs,
D had imported wine from France and sold without label and Belgian government said violated their laws but
CJ held that was a Discrimination and covered under A 34 TFEU (MERQ in breach). Cassis de Dijon (1979)-
extended scope of A 34 TFEU to catch INDISTINCTLY APPLICABLE measures and new exceptions for the rules
introduced MUTUAL RECOGNITION principle [extended and redefined further in case of Keck (1993)). Buy
Irish (1982)- Irish City Council promoted sale of local product against imports and violation of A 34 TFEU
(MERQ). DEROGATION UNDER A 36 TFEU: Public Morality (Conegtae ltd (1986)- inflatable love doll ban in UK
allowed, Public Policy (Commission V Italy 1982- cannot be used for PURELY ECONOMIC reasons), Security
(Campus Oil 1984- need to show proportionate measures cant force companies to buy from state companies
prices above market), Health (Bluhme (1998)- restriction of import of bees into Denmark to protect local
populations was justified and appropriate A 36 TFEU established, Protection of National treasures and art or
protection of industrial and commercial property (Cassis de Dijon- Indistinctly Applicable Measures: apply to
domestic and imports, necessary to protect Public interest and Proportionate- differing rules for domestic
and imports & Mandatory Requirements: can only be used to justify Indistinctly Applicable Measures,
Consumer Protection (Walter Rau 1982), Public Health (Argonesa 1991) and Environment Protection
(Commission V Austria 2005). DISCRIMINATORY RULES (DR): differing rules for domestic and imports, caught
under A 34 and 35 TFEU and derogation (justified) under A 36 TFEU [NOT cassis de Dijon].

INDISTINCTLY APPLICABLE RULES (IDAR): appear to apply to domestic and imports equally but in fact cause
more burden on imports (have to comply with local regulations at home country and exporting country as
well) these are ILLEGAL under A 36 TFEU and Cassis de Dijon mandatory requirements. Dassonville defined
MEQR => Cassis de Dijon extended to IDAR. Keck (1993)- limited application of A 34 TFEU to exclude SELLING
ARRANGEMENTS (marketing outside of A 34 TFEU) and only apply to PRODUCT REQUIREMENTS BUT
marketing rules affecting product are caught (Clinique 1994- Germany said cant use word Clinique for
cosmetic items as it might confuse consumer to thinking its medicinal, CJ said it was DISRPOPORTIONATE to
objective of Consumer Protection and Health of Humans). Restriction on Product USES will not be SAVED
under Keck test, BUT measures in question can be JUSTIFIED on grounds of Public Aims such as Road Safety or
Protection of the environment.

FREE MOVEMENT OF SERVICES AND ESTABLISHMENT

A.56 TFEU basic rules ABOLISHING restrictions on Freedom to Provide SERVICES. A 57 TFEU Defines
SERVICES. A 61 TFEU non-discrimination transitional provision. A 62 TFEU applies to SERVICES the
derogations on grounds of PP and PS and PH and exercise of official authority. ECJ has permitted MS to justify
derogations / protectionist aims in light of the freedom of establishment to a limit. Van Binsbergen (1974)
A 56 TFEU has DIRECT EFFECT. Webb (1981) Rules imposed by nations be PROPORTIONATE to desired
OBJECTIVE. Sager V Dennemeyer (1991) Ct held A 56 TFEU requires not only elimination of all discrimination
against persons providing SERVICES on ground of NATIONALITY but also ABOLITION of restrictions even if it is
Non-Discriminatory. National Rules restricting freedom of service provision MUST be non-discriminatory and
justified by imperative reasoning related to Public Interest and necessary and proportionate. Omega (2004) -
Omega started laser game facilities in Germany where players shoot at each other with laser guns. In other EU
countries these games are acceptable but in Germany where human dignity is a constitutional principle the
police took an order forbidding Omega from operating the playing at killing game on the ground that the act
of simulated homicide and the trivialisation of violence engendered were contrary to fundamental values;
referred to the ECJ under Article 234 on the lawfulness of the prohibition under Community law. ECJ said
Protection of Human Dignity a value common to all EU MS and protected by ECHR, protection of a
fundamental right was a legitimate interest which justified a restriction of the obligations imposed by
Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to
provide services. COMMENT: With the enlargement of the EU it could be that religious and moral principles
could come back on the agenda, for example by the activity of the so-called Dutch abortion ship that was
refused docking in Portugal and Poland earlier this year.

DEFINITION FO SERVICES: A 57 TFEU temporary in nature and provided for a remuneration. Belgium V
Humbel (1988) state school under national education system held NOT to be providing a SERVICE but private
school that makes a profit is a SERVICE A 56 TFEU. SPUC v Grogan [1991] - private organization tried to stop
students unions in Ireland from publicising the addresses of British abortion clinics (abortion is illegal under
Irish law) to university students. European Court held in favour of the organization, Students Unions were not
acting on behalf of the British abortion clinics but simply to help students, therefore could not rely on the right
to advertise the services provided in one of the Member States in other EU countries. If British abortion clinics
wanted to advertise in Ireland this could be prevented under the public policy proviso in Art 52 TFEU which
applies to services by virtue of Art 62 TFEU and allows Member States to make exceptions to EU rights on
grounds of public policy. Each Member State decides for itself what the public policies. This could only be
precluded if the right to abortion is held by the Court to constitute a fundamental human right which is
unlikely to happen. A 56 TFEU covers Cross Border Activities. Ciola (1999) Austrian law restricting number
of other MS boat moorings was in breach of A 56 as it interfered with Companys attempt to provide services.
Cowan (1989) French law provide compensation for injuries to French nationals and residents who were
victims of crime. Ct said rule not dependent on a residence QUALIFICATION, Mr C on a visit to Paris being
robbed and injured can claim compensation as a recipient of a SERVICE under A 56. Gravier V City of Liege
(1985) the extension is especially possible via Education Service Provisions. Kohll (1998) daughter of Kohll
from Luxemburg sought medical treatment in Germany and sought reimbursement from Luxemburg Social
Security who refused on grounds of requirement of Prior Authorisation for treatment in other MSs. Ct of J
said requirement was CONTRARY to A 56 and 57 of TFEU (such restriction only justified if serious risk of
undermining the financial balance of the social security system). Inzan (2003) -French authorities provide
Social Security assistance for medical treatments in other MSs only if such care not possible in France. Ct said
it can only refuse on non-discriminatory and objective reasoning that the persons are aware of ahead. R on
the Application of Yvonne Watts (2006) delay in offering treatment in home state exceeds medially
acceptable time period the competent authorities may NOT refuse authorisation due to; waiting lists, alleged
distortion of normal practices, hospital treatments being offered for free and comparison of costs in Host state
and in MS of residence. Alpine Investments BV V Minsiter van Fianncien (1995) Service that Move and
Provider and Recipient dont Alpine not allowed to Cold Call customers in Netherlands so it called customers
in UK (not restricted in UK). Restriction from Home State of ESTABLISHMENT but restricted FREEDOM to offer
services in another MS. Ct said Alpine can plead A 56 TFEU against home state, since services are provided
for a person in another MS BUT it was decided that the Dutch Rule was JUSTIFIED and PROPORTIONATE to
protect REPUTATION of the Dutch FINANCIAL SECTOR.

DEROGATION FROM FM of SERVICES: A 51 TFEU allows MS exclude ACTIVITIES connected even

OCASIONALLY with exercise of OFFICIAL AUTHORITY. A 52 TFEU derogation of EST and SERVICE
provision/receipt same ground as WORKERS PP, PH and PS. Arblade and Leloup (1999) DUAL REGULATORY
BURDEN AVOIDED as long as Host state has access to registration and records of workers from the registry
in EST state. Laval (2007) Latvian company workers in Sweden on a building project, Swedish unions impose
BLOCKADE, Laval asked Police for assistance, they refused saying it was lawful under national law and not
allowed to intervene. CJ said since Latvian Co protected workers to EU standards per law, forcing it to comply
with higher Swedish standards was a breach of tis rights under A 56 TFEU A 56 TFEU had Horizontal Effect.
Ladbrokes International Ltd (2010) Netherlands not OBLIGED under principle of mutual recognition to
recognise licences to operate granted in other MSs as it needed to PROTECT national consumers. HIT LARIX
(2012) CJ held National Measures prohibiting advertising of foreign casinos although restricted the freedom
to provide services was JUSTIFIED by the OBJECTIVE of CONSUMER PROTECTION. Josemans (2010)
prohibition for residents to access Dutch Coffee shops, if within scope of A 56 TFEU if justifiable under grounds
of Reducing Drugs Tourism and Public Nuisance- few examples where Ct found National REGULATORY policies
fell OUTSIDE the SCOPE of the Treaty. DIR 2006/123 facilitate FM of SERVICES by removing LEGAL and
ADMINISTRATIVE barriers to trade and in services sector.

A 49 TFEU - prohibits restriction on grounds of NATIONALITY for Freedom of Establishment (upheld in

Factortame (1990)). Also extended to encompass INDIRECT DSICRIMINATION (Klopp (1984) making it more
difficult for non-nationals than nationals). Gebhard (1994) - German citizen who became subject to
disciplinary proceedings by the Milan Bar for pursuing a professional activity as a lawyer in Italy and for using
the title of avvocato although he was not admitted as a member of the bar and his training, qualifications and
experience were not formally recognised in Italy. Ct said such restrictions can only be imposed if; non-
discriminatory, justified by overriding general interest, suitable to achieve objective and not beyond what
was necessary. [ same test as Cassis de Dijon mandatory requirement test]. Daily Mail (1988) Ct said that
the restrictions to transfer (having to get a Treasury Permission) ESTABLISHMENT to another MS was allowed
as due to VARIATIONS of company law in different MSs. Klopp (1984) a company can be formed in one MS
for purpose of creating SECONDARY establishment in another MS and immaterial that it was done to AVOID
minimum Capital requirements. Cadbury Scwepps V IRC (2006) Company to establish in another MS to take
advantage of more favourable tax regime was not an ABUSE.

DEROGATION FROM F of ESTABLISHMENT: A 51 TFEU Allow MS to exclude activities connected even

occasionally with exercise of official duty. A 52 TFEU derogation of EST and SERVICE provision/receipt same
ground as WORKERS PP, PH and PS.

MUTUAL RECOGNITION OF QUALIFICATIONS: A 49 and 56 TFEU have DE. DIR 2005/36 MUTUAL TRUST
and MUTUAL RECOGNITION - covers Doctors, Nurses, dental, vets, midwifes, pharmacists and architects (this
DIR is currently being reviewed by the COMMISSION). Reyners (1974) Ct found even if no DIR harmonising
NR on qualifications required for services, A 49 TFEU itself contains DIRECTLY EFFECTIVE prohibition of
discrimination which can be relied upon (similarly used in Van Binsbergen). UNECTEF V Heylens (1987)
Belgian trained footballer apply job in France refused recognition of his training CJU recognised right for MS
to lay down conditions of access to occupation, BUT must be reconciled with RIGHT to FREE MOVEMENT.
Knoors (1979) citizens can only rely on A 49 TFEU against HOME STATE if governed by a DIR to be sued
against HS. Commission V Italy (2012) Ct ruled that Italian legislation imposing MAX fee Tariff for lawyers,
COMPLIES with Fundamental Freedoms of the INTERNAL MARKET- did not deprive other MS lawyers of access
to Italian MARKET under normal conditions of COMPETITION. This REASONSING applies to SERVICES and
ESTABLISHMENT as well. Tawil-Albertini (1994) although Belgium recognised his qualification the Ct held
this DID NOT BIND France. Haim (1994) Ct said German authorities must compare his qualifications to see if
he covered required knowledge take into account experience gained in another MS when deciding if his
training requirements not within standard. DIR 2009 / 50 / EC further discusses 3rd Country Nationals
recognition of QUALIFICATION (Blue Card DIR).

FREE MOVEMENT OF CAPITAL

No definition of CAPITAL within the treaty. The free movement of capital provision of A 63 TFEU applies
ratione loci worldwide: to both capital movements within EUs internal market and to movements from the
internal market to third countries (and vice versa). A 63 TFEU - abolishes restrictions on FMC. A 64 TFEU
extends A 63 prohibitions to FMC with 3rd countries. A 65 TFEU derogations from A 63 TFEU. Trummer and
Mayer (1999) Council DIR 88/361 could be used as a point of reference whether measure is a restriction on
FMC. Mortgages (Westdeutsche Landesbank [2001]), Direct Investments (Commission V Portugal (Golden
Share) [2001]), Financial investments (Commission V Netherlands (2006)), Loans and Credit and Gifts in
Money or Kind. Criminal Proceedings against Sanz de Lera (1995) A 63 TFEU HAD DE, A 63 TFEU did NOT
REQUIRE any implementing LEGISLATION at MS level but DIRECTLY confer rights on INDIVIDUALS which they
can rely upon at National Courts. A 63 TFEU all restrictions on CAPITAL movement b/w MS are PROHIBITED
including elimination of unequal treatment on grounds of nationality. Alpine Case measures which despite
being non-discriminatory, HINDER ACCESS to the MARKET are in breach of A 63(1) TFEU. A 64 TFEU covers
FM of Capital with regards to 3rd Countries.

DERGOATION FROM FM OF CAPITAL: Gebhard Ct found, measures otherwise prohibited measures to be

justified on grounds of Public Interest or PROPORTIONALITY. Manninen (2004) justifications of a purely
ECONOMIC nature are NOT accepted. Treaty Derogations Under A 65 restrictions on basis of Tax Provisions,
prevent infringement of NL, measures for administrative and statistical information gathering and measures
on PP, PB and PS (A 65(1) TFEU). Case of Scientologie Ct listed number of limitation to the use of derogations
under A 65 interpreted so their scope cannot be determined unilaterally by MSs, derogations cannot be
misapplied to serve economic ends and such derogations are subject to principle of PROPORTIONALITY. A
65(1)(a) TFEU specific derogations allow DIFFERENT TAX treatment for non-residents and foreign
investments. IT IS NOT UNLIMITED- has to fit categories of Scientologie case. A 65(1)(b) TFEU allow MSs to
take all REQUISITE measures to prevent infringement of NL and regulations. This list is NOT exhaustive.
Bordessa (1995) A 65(1)(b) requisites can be extended to encompass measures designed to prevent ILLEGAL
ACTIVITIES-money laundering and drug trafficking as such.

Economic and Monetary Union (EMU): EMU in 3 stages, 1- FMC via DIR 88/361, 2- Coordination of Economic
and Monetary Policy and 3- Fixing Exchange rates. In 2007 European Financial Stability Facility (EFSF) was
established to assist EU MSs on financial difficulty bailouts in conjunction with IMF organised. Financial Crisis
in 2011 lead to the Fiscal Compact Treaty and the ESM.

FREE MOVEMENT OF PERSONS

A 21 TFEU states Every citizen of the Union shall have the right to move and reside freely Every person
holding the nationality of a Member State shall be a citizen of the Union and can access to benefits and rights.
A 21 TFEU states that this right is subject to limitations and conditions. Third Country Citizens can access EU
rights through EU citizens (Piggy back rule). Metock (C-127/08)- EU citizen must have access to RIGHTS before
family members can use INDIRECT means to access rights. Employment/workers rights- A 45-48 TFEU rights
to take up work, salary and to permanently reside in a host state, equal rights as nationals to seek employment.
Self-employed/establishment rights- A 49-55 TFEU right to set up a permanent base in a host state. Service
providers- A 56-62 TFEU right to enter a host state and provide services without setting up permanently and
A 18 TFEU prohibits DISCRIMINATION. REG (EU) No 492/2011 on freedom of movement for workers within
the Union

WORKERS RIGHTS: DIR 2004 / 38 (worker not defined within Treaty or 2ndry Legislation). Dm Levin V
Staatssecretaris van Justitie ; 1982 -Took job to qualify for worker status, Living supplemented by BENEFITS
as salary not enough, part time work less than minimum wage, improving standard of living by work so a
worker. Kempf (1986)- remuneration for EFFECTIVE and GENUINE work. Lawrie-Blum V Baden (1986)-
Worker extended to trainees, GENUINE and EFFECTIVE employment, earn Remuneration. Trojani (2004) -
Given Pocket money + lodging = societal reintegration program, NOT A WORKER. Steymann V Staatssecretaris
van Justitie (1988)- Boarding + Pocket money = Indirect Advantage for work performed= WORKER. Bettray V
Staatssecretaris va Justitie (1989) - Social Program + Not Effective Work = NOT WORKER. Nina Orasche
(2004)- Worked 2.5 months in 7 years = WORKER = no minimal threshold. JOB SEEKER is a WORKER if has
genuine chance to seek work R V Immigration Appeal Tribunal ex Parte Antonissen (1991)- A 45 (3) (a) TFEU-
interpreted to accept even persons with job offers, given reasonable time (3-6 months) to find work. A 14 of
DIR 2004/38 states as long as they do not become an unreasonable burden on the social assistance system of
the host Member State.

RIGHTS OF WORKERS/JOBSEEKERS/FAMILY: Equal Treatment in work except within A 45 (4) TFEU- Right to
Reside within MS A 45 TFEU, Education and training rights, Access to Social Benefits A 7 (1) of REG 492/11, No
Residence Requirements: Commission V Luxemburg (2002) no minimum stay requirement to receive rights
(benefits). Groener v Ministry of education (379/87) which stated that a teacher had to know Gaelic in order
for them to be hired. This was a requirement for both nationals and internationals, LAWFUL NOT
DISCMINIATION (A 24 DIR 2004/ 38). A 12 of DIR 2004/38 EC- EQUAL opportunity for education for children
of WORKER, even if parents are no longer in the host state (Echternach 1989) Baumbast V Secretary of State
for Home Dept (2002)- Court relied on A 8 of ECHR (respect of family life), Childs primary care taker should
be allowed to reside as well and A 21 TFEU had DIRECT EFFECT. Boseman (1993)- DISCOURAGING movement
is also prohibited. JUSTIFICATION OF INDIRECT DISCRIMINATION AND RESTRICTIONS of FM: Gebhard (C-
55/94)-if applied non-discriminately, imperative requirements, suitable for attaining objective of restriction
and proportional.

FAMILY OF WORKER: DIRECTIVE 2004/38 defines FAMILY as: the spouse (unless in a marriage of
convenience), the registered partner, a child under the age of 21 or a dependent child or parent (of the EU
citizen or partner). DIRECTIVE 2004/38 EU Citizenship is FUNDAMENTAL STATUS of those applying for FM
rights rather than their STATUS as worker or jobseeker or family. Zambrano (2011)- Right of Residence to
Colombian parent of EU citizen to not deprive child of enjoyment of EU benefits of citizenship. A 45 TFEU gives
right to family member take up employment and have independent rights. A 23 DIR 2004/38 gives the same
right to non EU family member. Christini SNCF (32/75) Confirms that surviving family of a deceased will
continue to enjoy equal treatment. A 13 DIR 2004/38 - Divorce, annulment or termination of a registered
partnership should also not affect the right of family members to reside.

DEROGATION FROM FMP: A 45 (3) TFEU- states that a state can deny entrance to an EU citizen or his family
on reasons: Public policy (van Duyn V Home Office 1974-measures of public policy on individuals conduct),
Public security (Pirre Bouchereau 1977- criminal conviction in another MS), Health (Josemans 2010-
Netherlands tried to raise public health while issue was public nuisance, to allow tourists into Dutch coffee
shops selling drugs). A 45 (4) TFEU- employment in Public Service, Commission V Belgium (No 2) [1980]-
Teacher not covered under Public Service Derogation in A 45(4) TFEU. Public service must be in Exercise of
Power, Protect General Interest of Public, Bond of Nationality. Principle of PROPORTIONALITY UPHELD during
DEROGATION.

EU CITIZENSHIP: Zambrano seems to have dramatic implications for the Member States, particularly for their
immigration law, while on the other hand, both McCarthy (Mrs. McCarthy citizen of both the UK and Ireland
but had only ever lived in the UK or used her Free Movement rights so cant use DIR 2004/38, She married a
Jamaican citizen and sought to rely on her Irish citizenship in order to obtain a residence permit in the UK for
her husband. The CJEU concluded that she could not rely on her Irish and EU citizenship for this purpose.) and
Dereci (number of claimants who were third country nationals with no right to enter or remain in Austria.
They sought to rely on EU law in order to derive a right of residence from their EU citizen family members, Mr.
Dereci, who is a Turkish national and an illegal immigrant to Austria, it may be said that his Austrian spouse
and Austrian children would not lose the genuine enjoyment of the substance of their EU citizens rights by
his expulsion, unlike in Zambrano) appear to retreat from the highpoint of EU citizenship rights represented
by the Zambrano judgment. ECHR

TRADE HARMONIZATION: A 114 TFEU improving the functioning of the internal market of EU
Tobacco Advertising (2000)- CJ found EU overstepped limits of competence to harmonize NL on advertising
tobacco, challenged EU directive on this ban of advertising based on Human Health which they claimed outside
scope of EU Legislature, CT said to fall within A 114 TFEU the measure must remove obstacles that are result
of NL or remove distortion to competition. DIR annulled! .Kanatami (2013) ban on seal hunting said to be
within the parameters of improving the function of the internal market. Cassis de Dijon principle of MUTUAL
RECOGNITION applied in case of Schutzverband (2007) to say MS prohibition of sale of goods in packaging
allowed in another MS, contrary to principle of mutual recognition (MS that disallows must prove justification
vi A 36 TFEU MANDATORY REQUIREMENT). A 114 (4) -(9) TFEU- Derogation articles for Trade
Harmonization.

COMPETITION POLICY
Council REG 1/2003 & A 101- 109 TFEU => CONSUMER WELFARE + PROTECT SMEs. A 101 & 102 TFEU has
DE. Agreements breaching A 101 TFEU VOID unless meet exceptions. Proof of violation; agreement/collusion
b/w undertakings, effect on trade b/w MSs, agreement/collusion restrict trade or competition within internal
market. State Bodies are NOT UNDERTAKINGS. Centrafarm (1974) Parent and subsidiary regarded as SINGLE
UNDERTAKING (Tobacco V Commission 2012- certain period/substantial control over the infringing body).
Chemiefarma V Commission (1970)- Gentlemans agreement also covered under A 101 TFEU. Volkswagen V
Commission (2000)- acquiescence & continue to deal with accused then its an AGREEMENT. Wouters (2002)-
banning lawyers from associating with accountants did not go beyond scope of breaching A 101 TFEU as it
was necessary to ensure proper practice of legal profession + introduced RULE OF REASON (balancing
protection of certain PUBLIC aims against preservation of fair COMPETITION).

Dyestuffs (1972)- extend A101 TFEU via CONCERTED practices. Sugar Cartel (1975)- CT held no need to prove
a plan existed to cut out competition (even INDIRECT practices restricting competition were caught SOME
CONTACT B/W COMPANIES AND CONSCIOUS COOPERATION. Huls AG V Commission (1999)- COMM neednt
prove actual effect of concerted practice on market. Consten and Grundig vertical agreement within
prohibition of A 101 TFEU + clause of agreement obvious anti-competition so no need to examine actual effect
on market. Volk (1969)- DE MINIMIS rule, negligent effect on market so ignored (horizontal and vertical
agreements minimal market share of 10-15% must be held as threshold). EXEMPTIONS to A 101 TFEU
prohibitions as per A 101 (3) TFEU; restriction = better production + economic growth, Consumer receive share
benefit from restriction, causal link, not put in place to eliminate competition. REG 2790/1999 BLOCK
EXEMPTIONS + Guidelines on Vertical Restraints (2000). REG 1/2003 ENFORCEMENT REGULATION, National
Competition Authorities (NCAs) + COMM work together.

A 102 TFEU abuse of position in Market and decided after General Court or COMM does DETAILED
ECONOMIC ANALYSIS; Relevant Market (United Brands 1978- was there cross elasticity between Bananas and
other fruits CJ found NON INTERCHANGEABLE), Geographic Market (United brands V Commission 1978-
geographic area is where conditions for competition are same for all traders + DOMINANT POSITION which is
power to behave in independently of competitors or consumers), British Airways V Commission 2007- 39.7%
considered dominant share and held for a reasonable period of time as per Hoffman La Rouche 1979). A 102
TFEU prohibits ABUSE of dominance only ( Hoffman La Rouche 1979). Tetra Pak V Commission 1996- TYING
= Co obliges customers to buy another product as a condition of supplying main product (Microsoft V
Commission 2007). IMS Health 2004- refusal to supply essential facilities, within 3 conditions of; prevent
emerging of new product, unjustified refusal and refusal exclude any competition on secondary market.

COMPENSATION: Anti-Trust Laws of MSs NL governs EU antitrust laws, 11th June 2013 COMM present
proposal for DIR on COMPENSATION for victims and claim to damages.
MERGERS: A 101 TFEU can only apply to MERGERS if companies acquired cross-shareholdings as this would
reduce competition and A 102 TFEU applies where one party has dominant position (BAT 1987).

EU HUMAN RIGHTS
European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights
and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in
Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3
September 1953. All Council of Europe member states are party to the Convention and new members are
expected to ratify the convention at the earliest opportunity. Convention established the European Court of
Human Rights (ECtHR). ECHR and ECtHR are under Council of Europe separate from EU institutionally. Nold
V Commission (1974)- used ECHR as a source of INSPIRATION when interpreting Fundamental Principles of EU
law. Niemietz V Germany (1993) & reflected in Roquette Feres (2002) A 8 ECHR extends to Companies too
(searching premises).

ACCESSION TO ECHR: ECHR and its JUDICIAL mechanisms dont FORMALLY apply to EU Acts. TOL A 6(2) - legal
obligation for accession of EU to the ECHR (legal basis for this under A 59 (2) ECHR amended by Protocol 14).
After accession, ECtHR would be court of last instance HR cases. Bosphorus V Minister of Transport (1996)-
Accession is only way to ensure MS liability under ECHR when implementing EU law. COMM + EUP + majority
of MSs supported accession agreement = CT said some issues, including Autonomy of EU law + Violating A
344 TFEU + ECtHR given more power than CJEU on EU law. CT provided amendments. EU accession will
strengthen protection of HRs in EU by SUBMITTING Union legal System to INDEPENDENT external Control.

Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights
for EU citizens and residents into EU law. It was drafted by the European Convention and solemnly proclaimed
on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission.
However, its then legal status was uncertain and it did not have full legal effect until the entry into force of
the TOL on 1 December 2009. Fransson (2013)- FMR guaranteed by EU applicable in ALL SITUATIONS governed
by EU Law (not for outside law situations)- benchmark for LEGALITY of both EU and NL. A 53 Charter nothing
in charter interpreted to lower existing protection of rights under EU law and though NC can apply national
standards of Protection, they must do so without making EU law ineffective. EU Legislators must take Charter
into account when legislating. EUP V Council (2013) CT annulled Council Decision on surveillance of external
sea borders as might infringe FMR to level that EU legislation would be required. CT recognizes: A 1 Charter-
Fundamental Human Rights (Brustle V Greenpeace 2011- patenting of human embryos through patented
cloning), A 18 Charter Right to Seek Asylum (Hasan 2010) and A 24 Charter Rights of Child (Aguire V Zarraga
2010).

Not within any Treaty, Court declares the GENREAL PRINCIPLES of EU law protect Fundamental Human Rights
such as freedom and dignity = values common to MSs. Stauder V City of Ulm 1969 cheap butter for
pensioners recognized FUNDAMENTAL HUMAN RIGHTS as a GP of EU Law. MAAST added A 6 TEU and A 7
TEU under TOA as more nations joined EU, democracy human rights more relevant. Nold V Commission
(1974)- 2 SOURCES of GPs of EU Law: common National Constitutional TRADITIONS (rarely used as difficult
find common traditions and fear of EU law compromising supremacy Haur V Land 1979 BUT in Omega 2004-
CT said immaterial FHR had source in NC or EU Law as a GP of law as EU uphold such right no matter source)
and International HR Agreements (Defrenne V Sabena 1978- Intentional Covenant on Civil and Political Rights
(ICCPR) utilized) .

CHALLENGES TO EU LEGISLATION: Bosphorus V Minister for Transport (1996)- Serbian war time, Yugoslav
aircraft impounded under UN Mandated Sanctions implemented via EU REG, fundamental interests of
international community sufficed to justify BUT in Kadi V Council of EU (2008)- obligations imposed by Int.
Agt. CANNOT prejudice GP that EU measure must respect fundamental rights, CT annulled the REG on grounds
of infringing number of EU FMR.

MS BOUND BY GP OF EU LAW: Rutili (1975)- CJ said French measures restricting movement in France
examined in compliance with DIR 64/221 on limitation on FM which was in light of ECHR. Wachauf (1989)- MS
acting as AGENT for EU enforcing EU measures, protecting HR, MS BOUND BY GP AND FMPHR as is the Union.
MS DEROGATES FORM EU LAW: Elliniki (1992)- MS derogating under Public Policy ground must adequately
respect FMR and GPs. Carpenter V Home Secretary (2002)- MS rely on ground of Public Policy to refuse
migrant benefit, MS required to take into account ECHR A 8 (right to family life) + DIFFICULT to decide what
falls OUTSIDE scope of EU LAW as COURT can only uphold what is covered under EU LAW. Omega (2004)- CT
found in line with respect for FMHR banning marketing of laser game in Germany.