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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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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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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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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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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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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