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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Instructions for tutorial four: National remedies for breach of EC rights

The following is intended to help you with reading the cases listed in the ARL; it indicates what you should look for when reading them. I added some other readings to those provided in the ARL, but as usual, it’s only optional - if you want to get a broader (and at times also deeper) understanding of what is going on here. At the end, you will find instructions concerning your essays for week 4.

National procedural autonomy and its limitations (via requirements on equivalence and effectiveness)

33/76 Rewe-Zentralfinanz [1976] ECR 1989 and 45/76 Comet [1976] ECR 2043 As stated in the ARL: these are the cases that are normally taken as the basic starting point in asserting a conditional principle of national procedural autonomy in cases involving the vindication of EC law rights; what is most important is the following often-reiterated part: “national courts, when they apply Community law, may do so pursuant to their own national procedural rules. Thus, in the absence of harmonisation of such rules, ‘it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law”.

The following cases concern some procedural rules that may affect enforcement of rights based on EC law (in fact, there is a huge body of case law concerning enforcement of EC rights on the national level!):

C-213/89 Factortame (no.1) [1990] ECR 1-2433 Interim protection against national legislation conflicting with EC law; the case is also an excellent elaboration of the principle of effectiveness;

143/88 & 92/89 Zuckerfabrik Suderdithmarschen [1991] ECR I-415 and C-465/93 Atlanta [1995] ECR I- 3761 Interim protection, but this time against national implementation of EC legislation! So, the question is, to what extent can a national court grant interim protection against EC rules, being allegedly illegal (under Community law)? In this respect, remember what 314/85 Foto Frost [1987] ECR 4199 tells us as regards the jurisdiction of national courts to rule on validity of EC measures.

C-326/96 Levez [1998] ECR I – 7835 Time limitations and the requirement of effectiveness. Does the Court review effectiveness in abstract, or, does it examine how the rules apply in practice? (For this, you may find useful also a recent judgment in Joined Cases C-222/05 to C-225/05 van der Weerd and Others, para. 28)

C-255/00 Grundig Italiana [2002] ECR I – 8003 National legislation retroactively reducing time-limits for bringing proceedings: whether, and if so, under what conditions can a Member State reduce time-limits for bringing actions based on EC law with retroactive effect?

C-432/05 Unibet v Justitiekanslern judgment of 13 March 2007 Well, here you have several questions nicely packed in one judgment, all turning around interim protection against Community law violations; do you think that a gambling company should have an action in national courts to prevent the administration from requiring the company to apply for a permission to operate on the national market? Do you think that individuals should have the right to judicial review of national legislation even before their Community rights are violated? For a response, read the judgment!

C-392/04 & C-422/04 i-21 Germany [2006] ECR I-8559 Equivalence: is Community law treated in the same way as national law? Concerning re-opening final administrative acts, issued in breach of Community law. There is a recent comment by M. Taborowski in 44 (2007) CML Rev 1463. We will discuss this case in detail, since it nicely illustrates application of the requirement of equivalence, so read the judgment carefully!!!

Actions for damages in cases of breach of Community law

6/90 & 9/90 Francovich [1991] ECR I-5357 “The first one.” Simply read it.

C-48/93 Factortame (no.3)/Brasserie de Pecheur [1996] ECR I-1029 In relation to the actions for damages, focus on this judgment; it specifies the conditions under which national courts should award damages for breaches of Community law.

C-392/93 R v HM Treasury, ex p. British Telecom [1996] ECR I-1631 In this judgment the Court found that some of the conditions for imposing liability on a Member State had not been fulfilled. Which and why?

C-224/01 Köbler [2003] ECR I – 10239 and C-173/03 Traghetti del Mediterraneo [2006] ECR I-5177 Not happy with your courts and their treatment of Community law? Try this one(s)! Focus on Köbler, the latter one essentially applies what the Court said in it. If you want to read someone truly sceptical about the judgment and the Court itself, read this one: Peter J. Wattel: “Köbler, CILFIT and Welthgrove: We Can't go on Meeting Like This”, (2004) 41 CML Rev 177. It’s refreshing reading…

C-453/99 Courage Ltd. v Crehan [2001] ECR I-6297 Enforcement of the Treaty competition rules between private parties. In that relation, you may wish to refresh yourself with a nice judgment given by the House of Lords in consequence to the ECJ’s judgment. It will help you to realize that (like it or not), national courts are still those who actually decide: House of Lords, judgment of 19 July 2006, Inntrepreneur Pub Co (CPC) and others v. Crehan, [2006] UKHL 38; or, if you prefer doctrinal writings to their lordships’ opinions, a case comment in (2007) 44 CML Rev 817 by C. Hanley. (N.B: It does not concern the Q of liability, but rather the Q concerning the existence of breach as such, whereby the House of Lords decided that national courts are not bound by Commission's findings - it is submitted that this was contrary to ECJ's case law).

Questions for essays

This time no additional Qs from me. BUT, in your group, avoid writing on Q1 and Q2 at the same time. In other words, if any of you opts for Q1, no other one should write on Q2 (and obviously, vice versa). It is because they cover the same area and I want to discuss the whole range of problems included in this tutorial subject. And, it would be nice (although not strictly required), if someone picks Q3 (the problem one).

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Why is the action admissible? Just because!!!

Today has brought many interesting judgments from the ECJ, but before I will comment in more details on one of them (concerning the EC's competence in the field of criminal law), just a quick note, which relates to my critique of the Court’s argumentative practices. In C-273/04 Poland challenged one of the Council’s decisions adopted before the actual accession of the new Member States on 1 May 2004. The decision had amended the rules concerning direct support schemes under the common agricultural policy - quite a sensitive area not only for Poland, but also for the Union in general. This amendment was possible due to a special provision in the Act of Accession. Poland claimed that the amendment had gone beyond the limits of the special provision and in fact had changed the conditions of Poland’s accession to the EU.

You do not have to be fans of the Common Agriculture Policy to find the case interesting: one of the issues was also the question whether or not Poland could even submit its action. The contested decision was published on 30 March 2004, while Poland submitted its action only on 28 June, thus much later than possible under the applicable rules on time limits for direct actions.

Several arguments were put forward in support to Poland’s right to have the case being heard by the Court: its dubitable status as applicant under Article 230 EC and therefore a very limited standing before its accession, and also the fact that the decision was not published in the Polish version of the Official Journal. Advocate General Poiraes Maduro took issue with these arguments and after a detailed consideration of all possibilities (in 48 paragraphs) he finally proposed to hold the action admissible - proposing a new standard of standing for new Member States (as according to the rules on standing as interpreted now, Poland’s action would be inadmissible).


Well, the Court was far more economical with its arguments:

Findings of the Court

(33) In the present case, the Court considers it necessary to rule at the outset on the substance of the case.

Full stop. Does this need any further comment?

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Palacios de la Villa, Mangold and … Pfeiffer: a two-step application of EC law(?)

In Palacios de la Villa (C-411/05) the Court of Justice had an opportunity to express its views on Mangold (C-144/04) - a judgment, which gave rise to much criticism not only from the part of the European legal doctrine, but also from one of the Court’s Advocates General (see also this related post concerning Lindorfer - judgment in Case C-227/04 P). In fact, given the circumstances of the case, the Court did not have to say much as regards Mangold. Rather, it added another piece to its jigsaw concerning horizontal direct effect of directives. Hence the reference to Pfeiffer (C-397/01 to C-403/01) in the title of this post.


In the case before the referring court from Madrid, Mr. Palacios de la Villa contested the automatic termination of his contract of employment based on his reaching the age-limit for compulsory retirement, which was presupposed by the applicable collective agreement. The agreement was in conformity with relevant Spanish legislation, which allowed such a termination, provided that an employee has fulfilled the conditions set out in the social security legislation of the Spanish State for entitlement to a retirement pension under the contribution regime. Mr. Palacios de la Villa contested this as discrimination on the grounds of age.

The legislation that implemented directive 2000/78 to the Spanish law expressly allowed such an automatic termination of a contract of employment and added: “such a measure must be linked to objectives which are consistent with employment policy and are set out in the collective agreement, such as increased stability in employment, the conversion of temporary contracts into permanent contracts, sustaining employment, the recruitment of new workers, or any other objectives aimed at promoting the quality of employment”. This additional requirement concerning the objectives of the possibility to terminate the contract of employment once an employee reaches retirement age was not mentioned in the previous legislation, applicable to Mr. Palacio de la Villa’s situation.

The Madrid court considered this as a possible breach of “the principle of equal treatment, which prohibit[ed] any discrimination whatsoever on the grounds of age and [was] laid down in Article 13 EC and Article 2(1) of directive 2000/78”. Its preliminary reference therefore asked on the conformity of the Spanish legislation with the mentioned principles. In case of their breach the referring court wanted to know whether these principles require it “as a national court, not to apply to this case” the contested provisions.

Before analysing whether or not the legislation in question was in conformity with directive 2000/78 or principles mentioned by the Madrid court, one could wonder what effects the Directive would produce in the dispute between Mr. Palacios de la Villa and his former employer. In Pfeiffer the Court stated:

The Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual […]. It follows that even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties. (paras. 108 and 109)

This was exactly what some governments asserted in their submissions: directive 2000/78 could govern the case of Mr. Palacio de la Villa only through the principle of consistent interpretation, not through direct effect. The case cannot be distinguished from Pfeiffer, where the Court reached the above-cited conclusions and found consistent interpretation the only possibility left for the national court.

Nevertheless, despite these doubts made expressly in their submissions, the Court examined only the material scope of directive 2000/78 - whether the rules prohibiting discrimination, contained in the directive, intended to govern ‘employment and working conditions, including dismissals and pay’ within the meaning of its Article 3(1)(c). The nature of the relationship, i.e. whether it was a dispute between private parties, which could significantly limit the effects produced by the directive, the Court left unattended. What is not surprising - unfortunately - the Court did not mention any objections made by the participating governments and went directly to the examination of compatibility of the Spanish legislation with the directive. As it had not found any conflicts (on this see the very end of this post), it did not have to rule on what effects the directive could precisely produce in the dispute before the Madrid court.

However, to be fair with the Court, Palacios can be reconciled with Pfeiffer in the following way: in both cases the Court firstly examined compatibility of national legislation with the directive. Only after taking this (first) step, it continued to elaborate what consequences that finding would have in the case (second step). One could therefore say that the first step does not concern direct effect and all the exemptions from its application.

This view would come very close to a recent Lenaerts’ and Corthaut’s proposal having primacy as a “basic conflict rule” of the EU legal order and leaving very little for direct effect, defined very narrowly - as “the very particular way of invoking a higher norm in order to enforce rights that were conferred upon the applicant by that norm and which would not otherwise have existed in the internal legal order” (“Of birds and hedges: the role of primacy in invoking norms of EU law”, (2006) 31 EL Rev 287 at 291, an earlier version can be found here - pdf). All other “work” of making EU law effective in national legal order is according to Lenaerts and Corthaut being done by the principle of primacy.

Therefore, the first step made by the Court in Palacio, examining whether a norm of national law conformed to Union law, would be a consequence of primacy of EU law and would not entail the question of what the finding of a breach would mean for the national legal order and legal relationships existing there on the basis of the conflicting rules of national law. The main disagreement concerns the second step: what follows from finding the breach?

This would slightly undermine a conclusion recently reached by Dougan in his “When worlds collide! Competing visions of the relationship between direct effect and supremacy” (2007) 44 CML Rev 931 to the effect that Pfeiffer represented rejection of the “primacy” model as “a working template for the relationship between direct effect and supremacy” (p. 953). To the contrary, the first step taken by the Court in Pfeiffer, where the Court actually established incompatibility of the German legislation with the Working Time Directive, would confirm that primacy was in this case, and remains to be “the basic conflict rule of the EU legal order”.

Again, the second step is much more contested. There Dougan has very good arguments to doubt that primacy was “the basic conflict rule” in Pfeiffer. Instead of relying on consistent interpretation the Court could have ruled that the directive produced “exclusionary effects”, having required setting aside the conflicting legislation, which was not excluded in horizontal situations under the primacy model. However, he himself admits that neither the primacy, nor his own (“trigger”) model provide a complete and inherently consistent theory.

I would add, on the basis of the above analysis, that Dougan did not include the first step in his analysis, although it can prove crucial in cases such as Palacio or Pfeiffer: it allows the Court to rule on compatibility of national legislation without it being necessary to have an applicant who would finally benefit from its ruling. Pfeiffer reinforces this possibility of judicial review without a suitable applicant, totally within the logic of the primacy model.

We actually do not know what would follow as the second step in Palacios, should the Court have found the Spanish legislation in breach of the directive 2000/78. However, if the Court intends to stick to Mangold, the only possible way to go would be (at least in my opinion) to allow the directive to produce horizontal direct effects. The underlying rationale (like it or not) would be horizontal direct effect of the principle prohibiting discrimination on the grounds of age, which the directive “only seeks to implement”, invented by the Court in Mangold. If it was possible to invoke the principle in a horizontal dispute before the period for implementing the directive had expired, it should be even more so thereafter. Another case currently pending before the Court, C-427/06 Bartsch (argued before the Court recently), can show how firmly is Mangold embedded in the heads of the ECJ’s judges.

Finally, to complete this comment, how did the Court come to the conclusion that the Spanish legislation was compatible with the directive? After excluding that the mere absence of statement of objectives pursued by the possibility to terminate a contract of employment of an employee who reached the retirement age would be contrary to the directive: “In the absence of such precision, it is important, […], that other elements, taken from the general context of the measure concerned, enable the underlying aim of that law to be identified for the purposes of judicial review of its legitimacy and whether the means put in place to achieve that aim are appropriate and necessary” (para. 57). Then the Court exercised such review and found that the Spanish legislation was “objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market”, and that “the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose”.

PS: I was inspired in the “step” analysis of application of EU law by national institutions by Sacha Prechal (Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union in Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate? (OUP 2007), particularly at 42.

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Tutorial three: The relationship between EC law and national law: preliminary references, direct effect, indirect effect & ‘incidental’ direct effect

As indicated in the Agreed Reading List (ARL), this tutorial should be concerned mainly with incidental direct effect. Therefore, if you choose one of the Qs from the ARL (p. 16), do not pick up Q1-Q3! However, we will consider some of the related questions, especially what has the ECJ led to creating such an incoherent body of various answers to one of the most fundamental questions of European constitutional law: how EC/EU law penetrates into the legal orders of the Member States.


In addition to ARL Q4-Q6, you may consider the following Qs:

1. Consider judgments in Cases C-194/94 CIA or C-443/98 Unilever on the hand, and C-201/02 Wells on the other. What are the differences between the two? Which of the situations can be called “triangular”? Which of the two is closer to horizontal direct effect proper?

2. Consider the following quote: “Any theory about invoking EU law which stresses the role of direct effect therefore has the major side-effect of simultaneously limiting the role of third pillar instruments such as framework decisions and decisions in the legal order of the Member States. This is not a neutral choice.” (Corthaut and Lenaerts, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law, (2006) 31 European Law Review 287 at 288.) Explain why “this is not a neutral choice” and illustrate on the development of the ECJ’s case law concerning direct effect of directives that it has never been - even before framework decisions were introduced into EU law.

Additional recommended reading:

Beyond the reading you have in the ARL, I strongly recommend you read Sacha Prechal’s case comment on Pfeiffer (C-397/01 to 403/01), published in (2005) 42 Common Market Law Review 1445 (as note earlier, you have access to CML Rev from within the Oxford University network or via VPN). She explains very clearly all niceties of the ECJ's case law concerning the legal effects of directives in national legal orders. In addition, you may have a look at her “Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union” in Barnard, C. (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate? (OUP, 2007), 35-70, which can also complement your reading of Corthaut and Lenaerts together with Peers, prescribed by the ARL at p. 15.

Last thing: keep in mind that horizontal direct effect remains controversial even in relation to (most) EC Treaty provisions. In that relation you may wish to read Opinion of AG Poiares Maduro in Case C-438/05 The International Transport Workers' Federation and The Finnish Seamen's Union, paras. 31 et seq.

General remarks regarding your essays:

1. Please try to keep your essays to maximum 2.000 words.

2. When citing cases, provide also their numbers (you do not have refer to the ECR as well).

3. Provide a biography at the end of the essay. When you quote someone, cite!

UPDATE:
In addition to the reading provided, you may also find useful these two articles (perhaps at the time when you prepare for your exam):

- Lenaerts and Corthaut: "Of birds and hedges: the role of primacy in invoking norms of EU law", (2006) 31 EL Rev 287 and - Dougan: "When worlds collide! Competing visions of the relationship between direct effect and supremacy", (2007) 44 CML Rev 931 I mention both articles in the post devoted to Case Palacios de la Villa (C-411/05). They provide opposing views on the conception of direct effect and supremacy, written by prominent authors in the field.

Common mistakes observed in your essays:

Some of you failed to take into account Lemmens Case (C-226/97) when analyzing the 'incidental direct effect' line of case law. But it is important because it shows possible limits of invoking directive 83/189.

Sometimes you also overlooked the important differences between cases CIA (C-194/94), Unilever (C-443/98) and Lemmens (C-226/97) on the one hand, and Wells (C-201/02) or Medicins Control Agency (C-201/94) on the other (stressed also by my Q1 above).

The reading should have indicated to you that the very notion of direct effect is contested amongst EU lawyers (compare e.g. the two recent articles by Lenaerts + Corthaut and Dougan added to your reading list). Therefore, think twice before you say what exactly the Court excluded in Faccini Dori (C-91/92; and confirmed in Pfeiffer - C-397/01 to C-403/01)!

Finally, when excluding horizontal direct effect, the ECJ gave some reasons for this, later elaborated in subsequent judgments or opinions of AGs. What are they?? Sometimes you simply said "directives cannot impose obligations on individuals". But this is NOT the reason! Go one level of abstraction higher and think, why is this the case??

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Conference „Europeanization of Public Law“ in Utrecht: some (personal) impressions

As I noted earlier, last week I was at a conference in Utrecht. The main purpose of the conference was to present and discuss a new book recently published by four Dutch professors - Jan H. Jans, Roel de Lange, Sacha Prechal and Rob Widdershoven. Some of the contributions nevertheless went fairly beyond the scope of the book and the participants could get information on some of the most recent developments in European (public) law.

By “European public law” the book understands especially administrative law, as it is perceived in continental Europe, while it focuses on “the question of what consequences Community law has for general administrative law and its principles within the Member States” (p. 4). Indeed, if you look inside the book, you will find almost as many references to national law (and national judicial and administrative practice) as to Community legislation and the ECJ’s case law. One of the purposes of the conference was to create a network of experts coming from various jurisdictions across Europe in order to continuously explore what influence Community law has there, since the book is intended to be “the beginning of an ambitious, ongoing research project on the influence of European law on the fundamental structures of national public law in a comparative context”.

For that reason the authors of the book launched a new journal: Review of European Administrative Law, with an attractive acronym: REALaw: a journal about the relation between European and national administrative law. You can find out more about it here (pdf). Let’s hope with the editors that it will be a success!

How about the contributions presented at the conference? The following is very unbalanced, as sometimes I made quite detailed notes, but this was not always the case - depending also on how much I participated myself.

Prof. Roberto Caranta’s paper was entitled “The Rising Tide: European Inroads in Administrative Law”, clearly referring to famous dicta made by Lord Denning in Bulmer v. Bollinger when he described the influence of EC law on national legal systems. Caranta pointed to some of the persisting themes of European constitutional theory, such as the conception of State and the relations of States to the “outside world” in the past and now in the era of diminishing boundaries between various legal orders. He also expressed some concerns about the role of the civil society in the Union and also the role of regions. There he provoked some debate on whether or not the EU enhances the role of the regions. It may be true that the EU institutions deal with the States instead of the regions (which is indicated also in some of the ECJ’s judgments on standing of regions in direct actions), as Caranta said. However, Professor de Lange rightly stressed that the existence of the EU assisted regions to get more autonomy from the central governments (just note the recent developments in Scotland, for example). On the other hand, as Professor Koopmans (former judge at the ECJ, who nicely presented himself as an old retired man living in the neighbourhood of the Hague) reminded, we haven’t invented a better form of organisation of public power then states, at least as far as representation and the rule of law is concerned. One would perhaps want to add that some supranational forms of governance are able to complement (not to replace!) the state structures in order to remedy some of their failures.

Prof. Hans D. Jarras commented more specifically on one of the book’s chapters: consistent interpretation. It was a lesson in German conceptual precision, but quite interesting! He objected to the use of the term “consistent interpretation” (which is used also in Prof. Sacha Prechal’s book on Directives in EC law) and suggested the term “interpretation in conformity with EC law”, used by the ECJ, instead. To him it better reflects the one-dimensional nature of the principle, whereby it is national law, which must conform to EC law. (It is interesting to note that e.g. the Polish Constitutional Tribunal has used both of the terms in its judgments - see this paper (pdf), fn. 62).

A very interesting discussion concerned a question whether this principle comes into play only in cases of conflict between national law and EU law - as Prof. Jarras insisted, or whether it is a general rule of interpretation used in any case. As a Danish colleague from the audience (I am sorry for not providing his name) pointed out, it should be the latter, since you never start with interpreting a piece of national legislation in isolation from EU law and only then you examine whether or not it is in conflict with EU law, particularly when a great part of national law is based on EU law. So, from this methodological point of view it does not make sense to say that the requirement of consistent interpretation is relevant only in cases of conflict. It is true, Prof. Jarras replied, but we need to distinguish this methodological question of how we interpret law from what the ECJ requires national institutions to do.

Prof. Jarras’ point seems to be confirmed by a rather awkward formulation of the obligation to interpret national law in conformity with EC law made by the Court in C-212/04 Adeneler and Others: “that obligation, arising from the second paragraph of Article 10 EC, the third paragraph of Article 249 EC and the directive in question itself, has been imposed in particular where a provision of a directive lacks direct effect, be it that the relevant provision is not sufficiently clear, precise and unconditional to produce direct effect or that the dispute is exclusively between individuals” (para. 113). From this it would seem that the ECJ understands the obligation as a “remedying measure”, which comes into play only after the provision of EC law cannot be applied directly (so even one step later after the national institution has found that there is a conflict between national and EC law).

I think that the distinction between consistent interpretation as a method and as an obligation is important: just take the line of case law represented by e.g. the judgment in Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen: “Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim” (para. 22). If there was an obligation of consistent interpretation regardless of existence of a conflict, the courts would be in fact required to abandon their “passive role” because they would have to start their legal reasoning from EU law.

It does not mean, however, that national law cannot turn the wider concept of “methodological” consistent interpretation into a stricter obligation. But this obligation would be based on national law, e.g. as a requirement of consistency and coherence of the national legal order (it would not make much sense to have one set of norms, based on EU law and interpreted in a particular way to conform to EU law and another, “purely national”, which would regulate the same area but being interpreted differently) or based on a provision of the Constitution: it seems that e.g. the Polish Constitutional Tribunal imposes an obligation for courts to take into account European law ex officio as a criterion of domestic law interpretation – see P 10/04 of 26.1. 2005 “Bank Enforcement Title Decision”, part III, point 7 (here - doc).

After this digression from Prof. Jarras speech I will only briefly present the other contributions.

Dr. Martina Künnecke presented the last contribution of the first day of the conference, concerning state liability and its Europeanisation in England and Germany. One of the possible explanations of a different approach of German and English courts to “Francovich liability” may lie in the path dependence of legal systems, a concept elaborated in more details e.g. here).

The second day started with my own presentation, entitled “The use of EU law as a conclusive argument to everything”. Quite promising, isn’t it? Professor Michael Dougan was so kind, when he saw that I was a bit nervous before my speech, to tell me that I should have won a prize for the best conference paper title, releasing some pressure from me. Having Peter Wattel, the author of a well-known article published in the CML Rev as a reaction to the ECJ’s judgment in C-224/01 Köbler (“Köbler, CILFIT and Welthgrove: we can't go on meeting like this” - if you don’t like Köbler, it is a must-read!) I felt better when criticizing the ECJ for its argumentative practices, which spread to other contexts as well (see also this post). Essentially, I considered an improper use of EU law and its “particular” nature or doctrines as a means to close deliberation on some difficult questions arising before lawyers, especially public law lawyers. I discussed this in different contexts: judicial process, political process involving the legislature and the executive and also academic discourse. Hopefully, I did not disappoint those who expected a lot from the title.

My very good friend (if I may say so), Dr. Xavier Groussot, presented on “General principles of law in the process of europeanisation of public law” (last year Xavier published his Ph.D. “General Principles of Community Law”). We have a continuous disagreement concerning the question whether or not the principles fall from Heaven and the same discussion arose after Xavier’s speech.

Prof. Michael Dougan presented “Community law and national rules on standing”. It is hard to do justice to Dougan’s very substantive paper here: after all, he published the whole book related to the topic (“National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation”). What he pointed out, there are two lines of case law concerning standing, one where the ECJ is quite intrusive and defines the standing for claimants relying on EC law autonomously. The second line leaves this to national procedural law (subject to the requirements of effectiveness and equivalence). It is hard to find some rationale behind these two lines, although there is a strong academic support for the first approach. However, Dougan stressed that it is not without problems: EC law as such does not clearly distinguish between public and private law and leaves this qualification to national law. Thus, the Community rules on standing can never fully be autonomous. Related issue is presented by a missing coherent distinction between protection of individual rights and enforcement of collective interests. Beyond this, autonomous EC law approach to the national rules on standing may create some unintended disturbances on the national level.

I was really glad to see Prof. Dougan in person, since I am still a newcomer to the world of EU law scholarship and know many people just as authors of articles I read in journals. And as I am interested in the ECJ and judicial process in the EU, I have come across with a number of Dougan’s articles already and always learn something from them!

Finally, Prof. Jean-Bernard Auby discussed “Europeanisation of administrative enforcement law”. Similarly as I said that Prof. Jarras’ contribution was an exercise in conceptual clarification, Prof. Auby’s presentation provided a thorough classification of the various stages, actors, and areas of enforcement of EC law.

Well, and that was all for the conference. But as the organizers pointed out: it was just a beginning of an ongoing research project and I hope to meet the people who come to Utreacht again!

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Mangold strikes back…

… at this time on the Union. Some comments on the judgment in Case C-227/04 P Lindorfer v. Council.

This post can be read as a teaser for the forthcoming Tuesday’s judgment of the ECJ in C-411/05 Palacios de la Villa. There the Court will have an opportunity to show how seriously (or not) it meant in C-144/04 Mangold that the prohibition of discrimination on the grounds of age is a general principle of Community law, enforceable before courts and possibly leading to setting aside conflicting legislation. You may remember Advocate General Mazák’s Opinion in Palacios, harshly critical about the Court and its Mangold judgment. Another Court’s Advocate General, late L. Geelhoed, expressed his difficulty with such a bold reading of general principles in the following way:

So broad an interpretation of Article 13 EC and of the rules adopted by the Community legislature on the implementation of that article results, as it were, in the creation of an Archimedean position, from which the prohibitions of discrimination defined in Article 13 EC can be used as a lever to correct, without the intervention of the authors of the Treaty or the Community legislature, the decisions made by of the Member States in the exercise of the powers which they – still – retain. (Opinion in C-13/05 Chacón Navas, para. 54).

The Lindorfer Case also reminds me of my recent contribution at the Utrecht conference (about which I hope to post some comments later). There I expressed some concerns about the way in which the Court treats arguments presented before it that (in my opinion) seriously undermines its legitimacy.

Before the Court of First Instance Ms. Lindorfer had challenged a decision of the Council calculating her years of pensionable service. One of the arguments presented by her was discrimination on the grounds of age, since the rules on calculation favoured older officials without any objective justification. The CFI dismissed her action, but Mr. Lindorfer appealed to the ECJ.

Originally the case had been dealt with by the First Senate (consisting of 5 judges). However, after the ECJ delivered its judgment in Mangold, this senate decided, in accordance with Articles 44(4) and 118 of the Rules of Procedure, to refer the case back to the Court in order that it might be reassigned to a formation composed of a greater number of judges. The case was taken over by the Grand Chamber, which on 26 April 2006 reopened the oral procedure, appointed a date for a hearing and asked Ms Lindorfer, the Council and the Commission to express their views i.a. on the following issues:

(a) the application of the general principle of equal treatment to a case such as the present, in particular the extent to which the situation of an official who joins the service of the Community institutions after a period of membership of a national pension scheme is comparable to that of an official who joined the service at an earlier age;
(b) the scope of the prohibition of sex discrimination when calculating actuarial values in the transfer to the Community pension scheme of rights acquired under a national pension scheme;
(c) the scope of the prohibition of age discrimination in the same context, in the light of the judgment in Mangold; and
(d) the extent to which the ‘principle of capitalisation’ may be capable of justifying a difference in treatment according to sex or age in the transfer of rights acquired under a national pension scheme to the Community pension scheme, which is characterised essentially by the principle of solidarity.

So, in Lindorfer v. Council the principle of non-discrimination on the grounds of age indeed stroke back on the Union and the ECJ in particular. This time, it was not for a national court to enforce the principle against the national legislator. Instead, the ECJ itself was put into a position to enforce its previous conclusions made in Mangold against the legislator of the Union.

As I mentioned above, I have already criticized the argumentative practice of the ECJ at various instances (see e.g. my article in EL Rev at pp. 481-483). However, in Lindorfer v. Council it seems to me that the ECJ has gone farthest so far in neglecting its justificatory obligations towards the parties and the European legal discourse in general. After two opinions of its Advocates General, who dealt with the issue in some length, after re-opening the oral stage of the procedure to discuss the relevance of the principle and its judgment in Mangold, there is no mention of it in the whole judgment (except when the ECJ recapitulates the CFI’s judgment under the appeal).

The Court opened its argumentation by the following:

(45) It should be recalled at the outset that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal […].

Without having access to the pleadings, we cannot actually say to what extent the appellant was clear in invoking the principle of non-discrimination on the grounds of age. It is true that AG Jacobs had some difficulties with the grounds of appeal (see paragraph 59 of his Opinion). On the other hand, both Opinions examined the principle without further objections and, after all, the main reason for re-opening the oral stage of the proceedings seemed to be exactly this principle.

It seems to me that in Lindorfer v. Council the Court had to face all the difficulties connected with adjudicating on the basis of general principles of law, “which are to be sought rather in the Platonic heaven of law than in the law books, [and whose] existence and […] substantive content are marked by uncertainty” (AG Mazák in in Palacios de la Villa, para. 86) especially when the court’s judgment would have replaced previous decisions made in a political process. It is interesting to note that when the case was pending before the Court, the Council changed the applicable rules and removed some of its discriminatory elements, especially those distinguishing between genders when calculating pensions. The distinctions made on the basis of age remained without change, however. The Court’s avoidance of the issue of the alleged discrimination on the ground of age may be read as its deference towards the Community legislator and the decision made in a political process. The way in which the Court did it, however, put its legitimacy in question. Let’s see on Tuesday what happens in Palacios de la Villa - whether the Court will show the same attitude towards national legislators….

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Instructions for tutorial two: The sources of EC Law and its supremacy over national law in the event of conflict

For this tutorial, you will write essays (YES, finally!)

Some general stuff concerning essays:
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.

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

Essays for Tutorial 2:
You can pick up one of the Qs put on pp. 12-13 of the ARL, or you can consider one of the following:

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, case pending, [86])

Discuss. Where 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. Consider these findings of the Polish Constitutional Tribunal (“Accession Treaty Decision”, summary - pdf - here):

“The Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) legislative organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions. [...] Every international organization remains a secondary subject, whose establishment, functions and institutional arrangements depend on the will of Member States and sovereign nations in these States, expressed in a certain way. The ECJ has not been delegated the competence to interpret national law”.

Compare it to the principles formulated by the German Federal Constitutional Court (apart from the readings suggested by the ARL, you may find useful this paper: Franz Mayer, “The European Constitution and the Courts - Adjudicating European constitutional law in a multilevel system”, at pp. 18-29). Does the PCT only “copy & paste” the FCC, or, can you see some differences? If so, what can be the reasons?


7. “My suggestion is not that any violation of fundamental rights within the meaning of Article 6(2) EU constitutes, of itself, an infringement of the rules on free movement. Only serious and persistent violations which highlight a problem of systemic nature in the protection of fundamental rights in the Member State at issue, would, in my view, qualify as violations of the rules on free movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order. However, so long as the protection of fundamental rights in a Member State is not gravely inadequate in that sense, I believe the Court should review national measures for their conformity with fundamental rights only when these measures come within the scope of application of the Court’s jurisdiction as defined in its case-law to date.” (AG Poiares Maduro in Case C-380/05 Centro Europa 7, case pending, [22])

To what extent can the ECJ adjudicate on violations of fundamental rights by the Member States? Would you agree with Poiares Maduro, that the scope of its protection should be widened? If not, why?


Some tips for your readings:
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).

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Some thoughts on Legal Professional Privilege in the European Union: Case C-305/05 Ordre des barreaux

The ECJ has recently decided on validity of obligations to inform and cooperate with competent authorities imposed on lawyers by Directive 91/308/EEC on fight against money laundering. According to the Directive, some categories of legal professions are under an obligation to inform (on their own initiative) competent authorities of any fact, which might be an indication of money laundering and to furnish those authorities, at their request, with all necessary information. In Case C-305/05 Ordre des barreaux francophones and germanophone and Others the ECJ found these obligations compatible with the protection of secrecy of communication between lawyers and their clients, known as Legal Professional Privilege (LPP).

Well, not really: the ECJ in fact did not review the directive in light of LPP; it only examined whether it was compatible with the right to a fair trial and rights of defence. As I will show in this post, these are quite different things.

In principle, two broad categories of LPP’s justifications can be distinguished: utilitarian and right-based. Within these two groups further distinctions can be identified. Eric Gippini-Fournier wrote an excellent article on this.

Utilitarian rationales stress the importance of the privilege for clients’ very ability to consult a lawyer: only if certain that the content of their consultations with a lawyer remains without disclosure can they seek lawyers’ advice. This has broader societal implications, ranging from supposed better observance of law (since lay people can become aware of applicable legal rules) to proper administration of justice. In contrast to the right-based justifications, utilitarian rationales underlie broader societal implications of the protection of privilege.

Right-based justifications (as their denomination suggest) rely on individual rights to be protected by the privilege. It does not have to be solely the right to a fair trial or defence, as the case law of the European Court of Human Rights (the ECHR) shows. This court based the protection also on the right to respect for privacy enshrined in Article 8 of the European Convention.

The distinction between various justifications is by no means academic: it will determine the scope of the privilege and possible exceptions to it. For example, if the privilege relies on the right to defence, then the communication, which is not relevant for these purposes, will be excluded. Similarly, if we take utilitarian justification contending that the protection increases better compliance with law, than the communication obtained for the purposes of circumventing applicable legal rules or avoiding sanctions can be excluded (probably contrary to a privilege based on the protection of the right to defence, for which such considerations would be immaterial).

The problem was that the referring Belgian Constitutional Court had transposed its own reading of LPP, based on the right to a fair trial and the rights of defence, to the preliminary reference sent to the ECJ. It asked whether the Directive’s obligations are compatible with these rights only and not with LPP as such.

The ECJ was urged by the parties in the main proceedings to review the Directive on a wider basis, but the Court (contrary to what AG Maduro had proposed) did not satisfy this asking. There is no place to make an analysis of the ECJ’s approach to reformulating preliminary references and responding to something else than originally asked. I would dare to say that it is arbitrary and cannot be explained on a coherent basis. Perhaps, it can be said that if the ECJ wants to reply, it replies. If not, it does not. Full stop. (On this there is quite an interesting article by Gareth Davies).

But in this case it has had considerable consequences: by limiting the scope of its answer to the right to a fair trial and rights of defence, the ECJ actually limited the scope of the privilege, without giving any consideration to the other possible rationales for the privilege, which could justify its wider scope. In a crucial part of its judgment (paras. 33 and 35) the Court contends:

it is clear from Article 2a(5) of Directive 91/308 that the obligations of information and cooperation apply to lawyers only in so far as they advise their client in the preparation or execution of certain transactions – essentially those of a financial nature or concerning real estate, as referred to in Article 2a(5)(a) of that directive – or when they act on behalf of and for their client in any financial or real estate transaction. As a rule, the nature of such activities is such that they take place in a context with no link to judicial proceedings and, consequently, those activities fall outside the scope of the right to a fair trial. Given that the requirements implied by the right to a fair trial presuppose, by definition, a link with judicial proceedings, and in view of the fact that the second subparagraph of Article 6(3) of Directive 91/308 exempts lawyers, where their activities are characterised by such a link, from the obligations of information and cooperation laid down in Article 6(1) of the directive, those requirements are respected.

Well, as far as the right to a fair trial or to defence is concerned, it may be true. However, it is a completely different question whether the obligation is compatible with legal professional privilege, if the privilege is based on another right (e.g. the right to privacy, as it is in some judgments of the Court of Human Rights, which the ECJ elegantly omitted to mention), or if it is based on utilitarian considerations, as e.g. legal privileges existing in England are (see particularly this judgment of the House of Lords).

Moreover, the judgment seems to contradict even the ECJ’s own case law concerning LPP in competition proceedings. There the privilege is certainly granted outside the confines of judicial proceedings and these are interpreted fairly widely by Community courts. Ironically, a judgment by the CFI, further clarifying this was delivered at about the same time (see this information at EU Law Blog, with links to the judgment).

I have written a case comment, which can be found here. Comments of course most welcome!

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Conference "Europeanisation of Public Law" in Utrecht

On October 11 and 12 I will attend (and present a paper at) conference "Europeanisation of Public Law" in Utrecht, organised jointly by Department of Constitutional and Administrative Law, University of Utrecht, Department of Administrative Law and Public Administration, University of Groningen and Department of Constitutional and Administrative Law, Erasmus University Rotterdam.

The conference is intended to mark the publication of a book holding the same title, by Prof. J.H. Jans, Prof. R. de Lange, Prof. S. Prechal and Prof. R.J.G.M. Widdershoven.

I hope to post some news directly from Utrecht.

More information can be found here [pdf], below I add the programme:

Thursday 11 October Chair: Prof. Annetje Ottow (University of Utrecht)

12.30 - 13.00
Registration

13.00 -13.10
Welcome

13.10 – 14.10
The Rising Tide: European Inroads in Administrative Law
Prof. Roberto Caranta (Turin)

14.10 – 15.10
Interpretation of National Law in Conformity with EU Law
Prof. Hans D. Jarass (Münster)

15.10 - 15.45
Coffee/Tea

15.45 – 16.45
The Europeanisation of Public Authority Liability in England and Germany
Dr. Martina Künnecke (Hull)

17.30 - 19.00
Reception
Ottone,Kromme Nieuwegracht

19.00 - 21.30
Conference dinner
Ottone, Kromme Nieuwegracht

Friday 12 October Chair: Prof. Peter Wattel (Dutch Hoge Raad, University of Amsterdam)

9.00 - 9.50
The Use of EU Law as a Conclusive Argument to Everything
Jan Komárek (Oxford) - that's me :-)

9.50 – 10.40
General Principles of Law in the Process of Europeanisation of Public Law
Dr. Xavier Groussot

10.40 - 11.00
Coffee/Tea

11.00 – 11.50
Community Law and National Rules on Standing
Prof. Michael Dougan (Liverpool)

11.50 – 12.40
Europeanisation of Administrative Enforcement Law
Prof. Jean-Bernard Auby (Paris)

12.40 – 13.00
Concluding Remarks

13.30 -14.30
Lunch
(only speakers/invitees)
Faculty Club

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Tutorial One: European Integration, European Lawmaking Institutions, and Legal and Constitutional Limits on European Lawmaking

As noted in your Agreed Reading List (ARL - here the pdf), at the tutorial we will focus on part IV - “Legal and Constitutional Limits on European Law Making”. In the following I wanted to provide you with some more detailed questions, which should put the questions contained in the ARL (at p. 8) on a more concrete base. So, do your reading and try to have in mind the Qs provided here as well as in the ARL. They will set a basic structure for our tutorial.

Legal limits on European lawmaking - competence

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?

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).

Considering that “powers retained by the Member States must be exercised consistently with Community law”, is there anything left for an autonomous action by a Member State? Try to find such an example; at the tutorial, we will try to identify possible ways for the Community to intervene.

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:

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:

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

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?

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).

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

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