Friday, October 17, 2008

MT 2008, Tutorial Two: General Principles of EU Law and Fundamental Rights, the Relationship between EC/EU Law and national legal orders


here come additional instructions for the second tutorial, which focuses on some of the most controversial (and still pressing) issues in the EU constitutional law - the relationship between legal orders of the member states and the EU, and the question of who and how should protect fundamental rights in the EU.

In this post you will find (1) tips for additional reading (which is only optional, but those of you who aspire at having a deeper understanding of what is going on in these matters in the EU now it is, in my opinion, very useful) and (2) some additional questions to those that you have on your Agreed Reading List.

(1) Suggested Additional Reading
Of all cases you have on your ARL, Mangold is currently (perhaps) the most important, since the questions it opened remain unsettled until today and are object of further controversy. To understand why, AG Sharpston's Opinion in Case C-427/06 Bartsch, especially paragraphs 26-93, is brilliant (among other things, she summarizes the subsequent case law concerning Mangold, but also tries to explain where do the general principles come from). Note that the Court decided the case on a jurisdictional basis and in a way avoided answering some of the questions that Mangold had opened.

If you are interested in the debate concerning EU law and its distinct character (or its absence) as regards EC law and the relationship between the legal orders, Koen Lenaerts and Tim Corthaut, "Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’," (2006) 31 EL Rev 287 is instructive. Note that K. Lenaerts is a judge at the ECJ... (you will find this article very useful also when we will talk about directives and their legal effects in national legal systems).

Finally, a very interesting and illuminating jurisprudential analysis of the relationship between legal orders (or systems) in the EU is offered by Julie Dickson here: "How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations between, Legal Systems in the European Union."

What can make your life easier:
Weiler’s “The Autonomy of the Community Legal Order: through the looking Glass” was originally published in Harvard Journal of International Law, accessible at Oxford from Hein On-line or JSTOR. Maduro’s ‘Europe and the Constitution: What if this is As Good As It Gets?’ can be downloaded here (pdf). So you do not have to go to the Library and copy these; you can print them off instead. Both Weiler and Maduro are THE ones who have shifted the EU constitutional debate to the new fields and are definitely worth reading.

(2) Additional Questions for Essays
5. “[The general principles of Community law] enabled the Court – often drawing inspiration from legal traditions common to the Member States, and international treaties – to guarantee and add content to legal principles in such important areas as the protection of fundamental rights and administrative law. However, it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty”. (AG Mazák in Case C-411/05 Palacios de la Villa, [86])

Discuss. Where do the general principles of Community law come from? To qualify as such, does a principle need to be recognized by all Member States? Which institution is empowered by existence of general principles?

6. Read Kadi v Council and Commission (C-402/05 P and C-415/05 P) carefully. How does the Court explain that its review of the contested regulation will not challenge the primacy of the UN Security Council resolution in international law? Compare this to how member state constitutional courts justify their authority to control constitutionality of EC law in their legal orders.

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Sunday, October 5, 2008

MT 2008, Tutorial One: Legal and Constitutional Limits on European Lawmaking

Hi again,

you should already have got most of the practical instructions in the e-mail I sent to to all of you on 5 October, so here come more bits related directly to the contents of our first tutorial. As noted in the Agreed Reading List (ARL), the first tutorial focuses on part 4 - “Legal and Constitutional Limits on European Law Making”. In the following I want to provide a number of more detailed questions, which should put the questions contained in the ARL (at p. 8) on a more concrete base and help you in answering them, since ...

... yes, there will be an essay required!

Please, write a short essay on either one of the questions set in the ARL or one of those listed below. I need your essays until 20:00 of the day before the tutorial. Our discussion will be based on your essays, so the more attention you will give to their writing, the better for you (and your preparation for the exam). After the tutorial I will mark the essays and will send them back to you with my comments and possible corrections, so as you can keep them when the end of Trinity Term and your long-awaited day of the EC law exam (a.k.a. The Judgment Day) comes.

The essays should be no less than 1.000 words and no more than 1.500 words long.

Legal limits on European lawmaking – competence

1) Why does it matter to the Member States and the institutions, which legal basis is to be used for a legislative measure? Does it matter to the citizens?

2) Try to think about who and how is represented in particular institutions: e.g.: in the Council: is it the Member States? or its governments? Does it make a difference? - Here, have in mind also ARL, Q4 (for this, I found Craig and de Búrca, 133-138 and Chalmers et al, 167-178 particularly helpful).

3) Considering that “powers retained by the Member States must be exercised consistently with Community law,” (for a practical example concerning direct taxation, apparently outside Community competence, see e.g. C-279/93 Schumacker, para. 21) there anything left for an autonomous action by a Member State? Try to find such an example; we will try to identify possible ways for the Community to intervene. (To me this seems to be a game where a Member State can never win; but may be you will prove me wrong).

Concerning the issue of EC competences in the Internal Market, you may find useful this article by Professor Wyatt: “Community Competence to Regulate the Internal Market” (no obligation to read it! just a recommendation if you want to see the cases in a mutual perspective). You do not have to read it in full; just look at the abstract and try to realize what the “competence restricting” and “competence enhancing” elements of Tobacco Advertising are. Then, you can skip to pp. 9-23 of the paper, where a superb analysis of the judgment can be found (or, alternatively, have a look at p. 22, where this section of the paper is briefly summarized). If interested, you can continue to pp. 23-40, where Wyatt analyses the subsequent case law, mentioned also in the ARL at p. 7 (Swedish Match and British American Tobacco). He shows that the Court has continuously eroded the competence restricting elements of Tobacco Advertising.

So, this is as far as the Community competence (or its absence) to regulate the Internal Market is concerned. (Have in mind ARL, Q1 here). Now, consider the difference between the EC and the EU:

4) How does Case C-176/03 Commission v. Council differ from the above cases? What is the difference between the issue concerning various legal bases within the EC Treaty on the one hand, and the question of a distinction between the EC and EU on the other? This is also relevant for ARL, Q5.

Constitutional limits on European lawmaking – Proportionality and Subsidiarity

The following is illustrative of the question of relevance of the principle of subsidiarity: write down “subsidiarity” in Microsoft’s Word: its dictionary does not know the expression and will want you to correct it… Do the Court and other Community institutions recognize the principle?
If you are particularly interested in subsidiarity and want to have an alternative material than reading, check out here a speech by Advocate General (and EUI Professor) Miguel Poiares Maduro at conference “Sharing Power in Europe” (you must survive first 2 minutes or so of a chairman’s organisational announcements - perhaps make a coffee in the meanwhile - and then you have Maduro there). It’s 20 minutes long and worth listening!

The following Qs are linked to ARL Qs 2 and 3:

5) What is the difference between the principle of attributed powers on the one hand, and the principles of subsidiarity and proportionality on the other?

6) What is the difference between the principle of subsidiarity and the principle of proportionality? Think about labelling requirements, e.g. health warnings against smoking: 1. Do we need the same standards for the whole EC?; 2. Once we establish that we need them, what should they say? How large should these labels be? Is 1. (“do we need it?”) detachable from the question of having the competence, i.e. concerning whether the power to set a harmonised standard has been attributed to the Community?

7) What can proportionality mean practically? You can consult judgments in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others: going beyond what is necessary and Case C-310/03 Spain v Council (not on the ARL): obligation to provide some assessment of the impact of the intended legislation and its ability to achieve the aim pursued (paras. 95-137).

Considering ARL Q5, you may find useful this article by Nick Barber: "The Constitution, the State and the European Union" (2005-2006) 8 Cambridge Yearbook of European Studies 37.

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Sunday, January 20, 2008

Questioning EU constitutionalisms

As the picture on the right side suggests, I have moved to New York for the spring semester, in order to work on a comparative part of my thesis at NYU School of Law as a Visiting Doctoral Researcher. I am looking forward to seeing how things are being done here, as compared to my home base, Oxford. And of course, hope to have fruitful discussions with new people I hope to meet here.

Before I will be able to post more information about the Symposium on constitutional pluralism that I co-convened with my colleague Matej Avbelj (I am now undertaking a painful exercise of transcribing the record that we intend to publish), let me draw your attention to Matej’s paper recently published in German Law Journal: “Questioning EU Constitutionalisms”. I had a chance to read its first draft that Matej presented at Oxford EC law Discussion Group last October and I found it very useful in getting the reader into the terms of the current EU constitutional debate. And if you want to question some assumptions you might have about European integration and its conceptual framework, Matej is the right person to assist you in this endeavour!

Matej deconstructs various theories of European constitutionalism as they have appeared in the course of European integration. He goes through what he called “The Classical Constitutional Narrative”, represented e.g. by Koen Lenaerts and his famous article “Constitutionalism and the Many Faces of Federalism” (and I would definitively add Eric Stein, who was perhaps one of the first to construct the then EEC as a something special and different from an ordinary international organisation; you might know that he was corresponding with G. Bebr, who at the time worked in the Commission on its submission in the Van Gend en Loos that changed - at least for lawyers - the nature of the EC).

Then Matej identifies a rupture in this classical narrative that occurred with the adoption of the Maastricht Treaty, when the European integration project became fragmented and was started to be seriously questioned.

In the reaction, new theories have emerged and Matej gives a brief overview of many of them (particularly N. Walker’s, M. Kumm’s, M. Maduro’s and I. Pernice’s). Matej often finds that various authors use labels to describe their conceptions while their true content is far from what the label would suggest. However, what I was missing a bit: an answer to the question Matej constantly poses throughout the paper: what is an alternative and ultimately plausible account of the European integration than the “constitutional narrative”, which Matej seems to criticize?

In the conclusion, Matej criticizes the recent developments concerning the Reform Treaty and the (mis)uses of the concept constitutionalism by the political actors:

Indeed, if there is one dominant narrative in the European integration, this is the narrative of constitutional labeling. What is truly dominating integration is a constitutional label, more often than not filled with statist constitutional content, which can be removed from the façade of integration at least as quickly as it has been, with an enormous ease and little reflection, stuck on it. Just recall the latest genuine salto mortale, called the Reform Treaty. In a manner close to lustration of EU constitutionalism the European stakeholders uprooted from the text of a Constitutional Treaty, that they had only a while ago still so vigorously defended as the Constitution, everything that might be in any way reminiscent of the C-word. Those who genuinely believe in constitutionalism and in its appropriateness for the European integration simply do not act like that. And those who do not believe in it can not plausibly expect it to be ever turned into reality.

But, shall we abandon the constitutional narrative too?

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Saturday, December 1, 2007

U.S. professors look at the ECJ

From the abstract: This article analyzes a complex line of recent decisions in which the European Court of Justice has set forth its vision of a nondiscriminatory system for taxing corporate income distributed as dividends within the European Union. We begin by identifying the principal tax policy issues that arise in constructing a system for taxing cross-border dividends and then review the standard solutions found in national legislation and international tax treaties. Against that background, we examine in detail a dozen of the Court's decisions, half of which have been handed down since 2006. Our conclusion is that the ECJ is applying a standard of nondiscrimination to evaluate national tax laws in a manner totally divorced from the underlying tax policy norms that produced the legislation at issue. Some, but not all, of the decisions seem to require nondiscrimination based on the destination, but not the origin, of corporate investment. The result is a jurisprudence that fails to hold together substantively, functionally, and rhetorically. In many instances, this result follows from largely formalistic distinctions made by the Court, such as whether a withholding tax on dividends should be considered corporate or shareholder taxation.

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Monday, November 12, 2007

Seminar one: the free movement of goods and services

“Finally!” some of you might say, finally we approach the “real” stuff - the substantive law of the EC. As usually, the following are some tips of mine, which are intended to make your preparation for the seminar (and the exam as well!) easier. As the "official" seminar sheet says, the authors of various EU law textbooks approach some of the problems, concerning free movements on the Internal Market, in different ways. Even after 50 years of the Community's existence there are some (many?) issues contested and the case law is constantly developing. Yes, it makes your life more difficult, but an ambitious lawyer can also say: more interesting!

I know that there is a lot of reading given on the seminar sheet. However, I recommend you to have a look at this one: Peter Oliver and Stefan Enchelmaier: Free movement of goods: recent developments in the case law, (2007) 44 CML Rev 649 (from within the Oxford network you can download the article here [pdf]). (P. Oliver has been working for many years for the Legal Service of the Commission, litigating a lot of cases you will read about; he is an author of THE book on the free movement of goods (in its newest edition together with M. Jarvis: Free Movement of Goods in the European Community, 4th Ed., Sweet & Maxwell, 2003).

Oliver and Enchelmaier identify, in a very eloquent way, the persistent problems existing in the case law. You can perhaps just print the article off and skim through it to see what the problematic areas are. Sometimes the textbooks fail to acknowledge that the solution proposed by their authors is contested (example: the question whether you can rely on the judicially created “mandatory requirements” in order to justify discriminatory measures; see below). The article can help you to see this.

Below I offer a guide, which can lead your analysis of the issues present in your problem questions (questions 2 and 3, Seminar sheet p. 3-4), concerning the free movement of goods (but for services you can use a similar one). It is my suggestion only; if it is not convenient to how you are used to approach legal problems, just ignore it!
[NB: W & D refers to Wyatt and Dashwood's European Union Law, 5th Edition (Sweet & Maxwell 2006), CdB refers to Craig and de Búrca: EU Law. Text, Cases, and Materials, 4th Edition (OUP 2007).]

Basic steps to take in your analysis of restrictions on imports caught by Article 28 EC

1) Is there some secondary EC legislation applicable? (in more lofty terms: has the field been harmonized?)
“It should be borne in mind that, in a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law.” Case C-210/03 Swedish Match [2004] ECR I-11893, para. 81. But this does not mean that if you have a directive in the field you analyse, any consideration of primary law is excluded. It will depend on the scope of discretion left to the Member States, which remains to be controled by primary law, including the free movement articles (see also below, the cases which I provided to illustrate the test).

2) Measure having equivalent effect?
product requirement / selling arrangement / other? as you will see in your basic reading, there is still a lot of discussion about the proper scope of Keck. I very much recommend reading Oliver & Enchelmaier at 671-683.

3) Justified?
The distinction between Article 30 EC grounds/mandatory requirements: the dispute over the question whether or not you can rely on mandatory requirements, i.e. judicially created justifications, also in case of directly discriminatory (distinctly applicable) measures; contrast e.g. W & D at p. 625-626 with Oliver & Enchelmaier at 689-691 A brief, but very useful, discussion of this problem is also to be found in CdB at 706-707.

Possible grounds: express listed in Article 30 EC and/or mandatory requirements recognized by the ECJ

(Usually) the key: proportionality (but the requirement that the measure in question can represent “no means of arbitrary discrimination or a disguised restriction on trade between Member States”, when Article 30 EC is to be applied, is also important).

Note on the concept of discrimination: Consider that in the steps 2) and 3) you have three different kinds of discrimination in play: direct discrimination (which can roughly be equated with discrimination in law; e.g. a requirement that importers must obtain a special licence to trade in the host Member State), indirect discrimination (roughly discrimination in fact; e.g. a prohibition on advertisement makes it more difficult for importers to establish their product on the market of the host Member State) and arbitrary discrimination (an example of which is provided e.g. in W & D at 619 or

In step 2), when you identify a measure as a selling arrangement, both directly and indirectly discriminating selling arrangements will be caught by Article 28 EC (i.e. they will create restriction to the free movement of goods). Note that for product requirements, for which the traditional "Dasonville formula" applies, it is not important whether the measure is discriminatory; what is important is only the hindrance of trade between the Member States.

In step 3), if the measure is directly discriminatory, according to the interpretation defended e.g. by W & D (and opposed by Oliver & Enchelmaier), you cannot rely on judicially created "mandatory requirements" (which the ECJ started to invent in Cassis de Dijon). But you can still use the express grounds given in Article 30 EC, as long as they are not arbitrary discriminatory (and do not create "a disguised restriction on trade between Member States").

4) Who can invoke this?
Cross-border element and purely internal situations: be aware that this is again one of the rather confused are of the ECJ’s case law; apart from the textbooks (see e.g. W& D at 608-609 or CdB at 669) you can consult particularly Oliver & Enchelmaier at 650-660 to see what is at stake.

However, be aware about the distinction between applicability of EC law to the case before a court on the one hand and jurisdiction of the ECJ to reply to questions concerning purely internal situation on the other (see W & D, p 608 i.f. and p. 609, and in more details Oliver & Enchelmaier, p. 657 et seq.). Note that CdB (at 669) does not seem to see this distinction important. I think the distinction is important, see Case C-448/98 Guimont [2000] ECR I-10663, para. 21 and 22 (relevant part of the judgment is reproduced below at p. 9 of this sheet); in para. 21 the ECJ holds that Article 28 EC is not applicable in the factual context at hand; however, in para. 22 the Court hastens to explain that it can nevertheless give its ruling to provide an answer).

The Court tends to be rather generous when assessing whether or not the problem presented before it concerns "purely internal situations". Therefore, in the following practical examples, step 4 is not indicated. Also, it would be more logical to put this step at the very beginning (only if your client has capacity to invoke the Treaty provisions, does it make sense to go to courts; however, I put it here because it is relatively rarely questioned by the ECJ and in fact, it comes under the ECJ's scrutiny only if it is expressly presented to it).

Illustration of the test in some actual cases
(NB: the cases can also help to answer the problem questions; so it’s worth reading them also because of this!)

In the following, I am indicating the steps you can take when analysing the restriction. You can see this in many judgments or opinions of AGs. See e.g. Case C-434/04 Ahokainen and Leppik [2006] ECR I-9171, paras. 18-22. The Court examines whether a licence requirement to import spirits is a measure prohibited by Article 28 EC (and before, in para. 15, the Court firstly excludes application of a directive which regulates certain aspects of imports of alcohol, but not those at issue in the main proceedings). Note however, that the licence requirement does not fit well into the product requirement/selling arrangement dichotomy, so do not be confused that the Court in paras. 19 and 20 does not make a clear classification and merely states that the measure is a restriction on trade between Member States falling within the scope of Article 28 EC. After establishing this, the Court examines in paras. 28-40 whether it is possible to justify this restriction on the grounds provided in Article 30 EC.

Similarly, you can see the same structure of analysis in Case C-322/01 Deutscher Apothekerverband [“DocMorris”][2003] ECR I-14887 concerning the prohibition of internet sales of medical product.

1) When the Court analyses the ban concerning drugs not authorized by Germany (whose legislation was at stake in that case), it finds that a directive is applicable and Germany only discharges its obligations imposed by the directive; therefore, there is no need to consider whether the national provisions at issue in the main proceedings are precluded by Articles 28 EC to 30 EC (see paras. 52-54). Then it goes on to analyse the ban concerning authorized drugs. In paras. 63-76 it examines whether the ban constitutes a restriction. But again, it firstly establishes that a directive is applicable and delimits what scope of discretion is left to the Member States by the directive (paras. 63-65); this discretion is further limited by other Community law provisions, including Article 28 EC, so the existence of the directive does not preclude examination of this (para. 65).

2) Then the Court examines whether the ban on Internet sales is a restriction - paras. 66-77. Part of this is applying the test contained in Keck (does the ban affect importers more than domestic producers? (para. 74).

3) Having established the restriction, the Court lastly examines possible justifications: paras. 102-124.

Well, that's all for the moment, good luck when preparing for the seminar and see you all there!

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Sunday, November 11, 2007

Symposium: Four visions of constitutional pluralism

Matej Avbelj (PhD Researcher, EUI Florence) and Jan Komárek (D.Phil. candidate, University of Oxford)

Julio Baquero Cruz (research fellow, Centro de Estudios Políticos y Constitucionales, Madrid)

Mattias Kumm (Professor of Law, NYU School of Law)

Miguel Poiares Maduro (Advocate General at the ECJ, Professor of Law, EUI)

Neil Walker (Professor of European Law, EUI)

Venue: Sala Europa, Villa Schifanoia European University Institute Florence, Italy

Date & Time: 11 January 2008, 14:00 - 17:00

The event takes place within the framework of the EUI Legal Theory Discussion Group and is sponsored by the Academy of European Law, EUI, Florence.

Introduction: Each of the discussants has contributed significantly to the current understanding of constitutional pluralism and its relevance for the EU, or presented interesting challenges to it. Naturally, the individual approaches diverge, although they share the same starting point: pluralism as a challenge to a “traditional” constitutionalism bound to the State and its hierarchically organized legal order. Constitutional pluralism requires re-thinking many assumptions that constitutionalists (might) have shared until recently - the conception of constitutional authority and its legitimacy, the state or the very meaning of constitution and constitutionalism. This is an ambitious task about whose necessity or even appropriateness, however, not everyone would be ready to agree.

Aims: It is the aim of this symposium to focus on problems which the discussants’ contributions have left unexplored or even (at times) implicitly avoided. At the same time the convenors would like to take advantage of the discursive form of this event to engage with the theories and to point to their shared, as well opposing, views on modern constitutionalism.

Format: The symposium intends to start at the point where most conferences only begin to be interesting: in the discussion. Therefore, no papers will be presented. Instead, after the convenors briefly introduce the discussants and their contributions to the theory of constitutional pluralism, the debate, structured around a set of prepared questions, will be opened. The following papers will serve as a background for the discussion:

- Julio Baquero Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’, EUI RSCAS WP No 2007/13, available at,

- Mattias Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’, (2005) 11 European Law Journal 262,

- Miguel Poiares Maduro, ‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’, in N Walker (ed), Sovereignty in Transition (Hart, Oxford 2003), 501-537,

- Neil Walker, ‘The Idea of Constitutional Pluralism’, (2002) 65 Modern Law Review 317.

The whole event will last 3 hours, with a coffee break after 1,5 hour and a Q&A session in the second part.

The convenors intend to record the discussion and to publish its edited version in a form to be determined in agreement with the discussants.

If you are interested in attending this event, please register with either of the convenors at:

Matej.Avbel[at] or Jan.Komarek[at] .

There is a limited space available, so in order to secure a place at the event the convenors suggest contacting them in good time before the event.

We look forward to seeing you all in Florence!!

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Tuesday, October 30, 2007

Instructions for tutorial five: challenges to Community acts, and Community liability

Again, as with Tutorial 4, I have prepared a list of cases that you are expected to read with short annotations of what you should look for in them. Before, do what the ARL suggests in order to see on what grounds can the ECJ find a Community legal act invalid: go back to some cases dealing with general principles of law, which you had in Tutorial 2.

Remember that you are expected to know more than what we will discuss at the tutorial: e.g. what acts are open to judicial review according to Article 230 TCE, what the time limits for bringing the action to the Court are (think about the preliminary ruling procedure - you should already know whether it is possible to challenge Community acts via this route and whether there are some limitations on its use - see Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I-833, paragraph 13), and what the effects of the annulment (Article 231 TCE) are.

Consider also the development concerning the right of standing of the European Parliament and the question of who (and under which conditions) can bring an action to the Court.

Finally, although we cover only two kinds of direct actions, pay attention to others as well (particularly the infringement procedure - Articles 226-228 TCE, the action for failure to act - Article 232 TCE and the plea of illegality - Article 241 TCE; with respect to this last one: can it be used in the preliminary ruling procedure?).

Standing of non-privileged applicants
Here do not be confused by the following cases, which concern standing of so called “non-privileged applicants.” Bear in mind the distinction between privileged and non-privileged applicants, together with the fact that when non-privileged applicants are direct addressees of the contested act, they do not have to overcome the hurdle of the Plaumann test.

25/62 Plaumann [1963] ECR 95 - in this judgment the Court set its “Plaumann test” (sometimes also called “the Plaumann formula”) of standing of non privileged applicants, so it is the foundational judgment, stating the principle.

41/70 - 44/70 International Fruit Co [1971] ECR 411, 11/82 Piraiki-Patraiki [1985] ECR, 207 358/89 Extramet [1991] ECR I-2501, C-309/89 Codorniu [1994] ECR I-1853 - in these cases concentrate on factors which led the Court to distinguish the applicants and to allow (or exclude) their standing.

T-585/93 Greenpeace v. Commission [1995] II-2205 and judgment in an appeal against the CFI’s decision: C-321/95 P Greenpeace v. Commission [1998] ECR I-2305 - environmental organisations and their possibility to challenge Community acts breaching Community’s own environmental legislation (think also about an argument that diffuse interests do not have their “natural” defendants, which would bring an action directly concerning them).

The following series of cases is perhaps the “must-read” in relation to direct actions. It is also a very interesting illustration of the interaction between the CFI and the ECJ and the role, which Advocates General play in the judicial system of the EU. The sequence of events was the following:

(1) firstly AG Jacobs proposed in his Opinion to widen the criteria for standing of non-privileged applicants before the Community courts in UPA (C-50/00 P).

(2) Then, the CFI in fact followed him (remember, the CFI is now the key court, as it in principle hears all actions brought by individuals) and in its judgment in Case T-177/01 Jégo-Quéré v. Commission [2002] ECR II-2365 referred to Jacob's Opinion.

(3) However, the Court (the ECJ) was not persuaded by Jacobs and in its judgment in C-50/00 P UPA [2002] ECR I – 6677 it rejected the changed he had proposed (which was in the meanwhile embraced by the CFI).

(4) The Commission (who was the defendant in Jégo-Quéré) brought an appeal to the ECJ and the revolution was finally suppressed: the ECJ confirmed its orthodox approach once again and annulled the CFI’s decision (AG Jacobs had been called to write opinion also in this case: I think he had really hard time then…): Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425.

Case C-491/01 R v Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I – 11453, paras. 28-41 gives the UPA ruling into a broader perspective.

Action for damages against the Community
As you might have read in the textbooks, 5/71 Schöppenstedt [1971] ECR 975 seems to be overruled and the requirements stated there for the Community to be liable in damages are now in line with those applicable for Member States’ breaches. Thus Case C-352/98P Bergaderm v Commission [2000] ECR I-5291 and the following case law is far more important now. But still: try to think: what is the main difference between the two cases and could you come up with an example where it has proven important?

Questions for essays
This time again, no additional Qs from me. But it would be nice if we have one problem Q (no 4) answered by some of you at each tutorial.

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