Common mistakes Flashcards
Conditions to rely on the direct effect of directives?
- the deadline for implementation has passed (Ratti) or the MS has attempted to implement the directive (Pfeiffer)
- clear, sufficiently precise, unconditional
what is an emanation of the state for the purposes of vertcial direct effect?
horizontal direct effect
+ the court confirmed in Farrell v Whitty and others (Case C-413/15) that those conditions were not cumulative.
(1) a body made responsible by the state for providing a public service;
(2) under state control;
(3) with special powers for that purpose, beyond those normally applicable between individual
Foster v British Gas (Case C-188/89) [1990] ECR I-3133
indirect effect?
direct effect and supremacy.
the duty to interpretv national law in line with EU law.
It is frequently suggested that, by creating indirect effect, the Court of Justice gave directives horizontal direct effect ‘by the back door’. This argument certainly has some merit. However, Marleasing established that indirect effect has limitations, since the duty of consistent interpretation is not absolute. A national court is obliged to interpret national law in line with EU law only ‘so far as possible’. As the Court of Justice has recognised in cases such as Wagner Miret and Faccini Dori, other remedies may exist to fill this gap.
judicial review actions under art. 263 and direct concern?
Direct concern = a direct link or unbroken chain of causation between the act and the damage sustained. A link is not established if the measure leaves a Member State discretion in its implementation, for here the applicant is affected not by the act itself but by its implementation.
Municipality of Differdange v Commission (Case 222/83) [1984] ECR 2889
Facts: A Commission decision addressed to Luxembourg authorised it to grant aid to steel producers, provided they reduced production capacity. The applicant sought annulment of the decision, claiming that reduced production would result in the loss of local tax revenue.
Held: The Court of Justice held that the decision left the national authorities and producers discretion in implementation, particularly regarding the choice of factories for closure. It was the exercise of that discretion that affected the applicant, which was therefore not directly concerned by the Commission decision.
Van Duyn v Home Office and the scope of personal conduct…
as highlighted in Orfanopoulos: deporations must be proportionate = “genuine and sufficiently serious threat” at para 66.
Orfanopoulos and Oliveri v Land Baden-Württemberg (Cases C-482 & 493/01)
Facts: Orfanopoulos, a Greek national, was living in Germany where he had worked intermittently. He was convicted of drugs offences and sentenced to imprisonment, followed by deportation. Oliveri was in a similar situation.
Held: The Court of Justice held that, in assessing the proportionality of the penalty, the national court must take account of a range of factors, including the nature and seriousness of the offence, the length of residence in the host state, the time that had elapsed since the offences were committed, and the offender’s family circumstances. Proper regard must be had to fundamental rights, specifically to the right to family life guaranteed by Article 8 of the European Convention on Human Rights.
present assciation can be taken into account when considering the personal conduct of the applicant.
note that past conduct can constitute ground for expulsion when the applicant has a “propensity to act in the same way in the future” ( Boucherau).
can you cite cfreu articles that have horizontal direct effect?
what did the egenberger case change with regard to human rights in the EU?
the ECJ gave articles 21 and 47 HDE in the Egenberger case ( concerned aith discrimination on grounds of religion)
note that art 31 alsio has direct effect ( bauer)
The CJEU interpreted Article 4(2) of Directive 2000/78 (quoted below) as requiring that decisions of religious organisations on matters of employment should be subject to effective judicial review. Whether religion constitutes a legitimate occupational requirement is not a question that such organisations can determine for themselves. National authorities must ensure that there is ‘a direct link between the occupational requirement imposed by the employer and the activity concerned’ (Egenberger,para 63). The Federal Labour Court that had referred the case to the CJEU subsequently disapplied Paragraph 9 of the German Equal Treatment Act and restricted the autonomy of religious organisations within Germany contrary to established principles of national constitutional law.
what is the Surinder Singh route?
remmebre the case form free movement of persons/ Eu citizenship
Surinder Singh means that when an EU national has legitimately exercised free movement rights to another EU Member State, and then again is engaging in an economic activity once returning to their home country, their return to their home country is covered by free movement law. In practice, this will not be of interest to EU nationals who move by themselves—but it will be of interest to family members of EU nationals who are third-country nationals. The Surinder Singh ‘route’ has become a means by which bi-national couples (one an EU national, the other not an EU national) can try to avoid restrictive national immigration laws.
a quote showing that citizenship has evolved into a autonomous source of rights not only applying to economically active citizens and their families
‘Union citizenship is destined to be the fundamental status of the nationals of the Member States’ (Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve (Case C-184/99)).
The Court of Justice found that Mr Grzekczyk was an EU citizen who had exercised his free movement rights and was lawfully residing in another Member State; as such, he was entitled to equal treatment under Art. 18 TFEU. According to the Court (at [31]):
can you be deported for doing something legal in the host state but which may be looked upon as immoral (Adoui) ?
No, you can’t be deported, if prostitution is legal in the HMS, on the grounds that you engaged in prostitution.
can you provide an example of an indirect effect case?
The Dominguez case in France when the Code du Travail had to be interpreted in line with the Working time directive.
what do articles 28-30 TFEU deal with?
free movements of goods
these articles deal with external and internal taxation that might constitute an excessive burden on trade. it regards free movements of goods in the EU internal market.
what are the key aspects to take into account when seeking to distinguish the provision of services from establishments under EU law?
- the temporality: as said in Gebhard
- the relationship of subordination ( or rather lack thereof= Jany)
attention don’t confuse art the tfeu and teu!!
what is the ‘acte clair’ doctrine?
see the case of CILFIT
when the meaning is clear there is no need to make a reference to the ecj however, this can lead to misapplication of the doctrine which may prove detrimental to the rights of individual in the EU.
see the case of Kobler v Austria
note there is a environmental backsliding (in the environmental policies implemented or disapplied by the UK) since the UK has left the European Union.
