EU LAW

Background:
 EU is a supranational organization, which comprises of 27 members of state & their
primary purpose was to create a common market where there were no trade barriers.

Free Movement Of Goods:

 Non-Monetary Barriers:
 The definition of goods was laid down in the case of Art Treasure as anything, which forms
part of the subject matter of a commercial transaction.
 Article 34TFEU states that any state measure which results in a quantitative restriction or
measure equivalent to quantitative restriction will result to infringement.
 The first issue is to prove the definition of state measure which is anything directly or
indirectly connected with the state (Commission v Ireland, Apple & Pear Development,
Spanish Strawberries)
 QR was defined in the case of Geddo as total or partial restraint to trade.
 MEQR was defined in the case of Dassonville as anything directly, indirectly, actually or
potentially hindering intra community trade.
 Directive 70/50 distinguishes MEQR into distinctly applicable measure or indistinctly
applicable measure. (Evan Medical, Walter Rao)
 If the measure is an IDA measure, then we need to see whether it is a product
requirement (Familia Press & Walter Rao) or selling arrangement (Keck).
 PR means physical changes to the product eg: packaging, contents & color, whereas SA
means how a particular product needs to be sold.
 Product Requirement will infringe Article 34 whereas, selling arrangement does not
infringe according to the exception laid down in the case of Keck & also that selling
arrangement does not fall within the purview of Article 34. However, as of today the
Market Access Test has been introduced, which states that if there is a heavier burden
created on the foreign goods then it will infringe Article 34.
 Once an infringement has been proven the country can raise a certain derogation & justify
their measure.
 In order to successfully prove a derogation 3 points have to be met:
1. Recognized under treaties or courts
2. Public Benefit (why necessary for protection of public)
3. Proportionality (more benefit than detriment to FMG)
 Article 36 TFEU mentions certain derogations available for DA measure:
1. Public Morality- (Henn & Darby, Conegate)
2. Public Security- (Campus Oil)
3. Public Policy- (ITF case)
4. Public Health- (Rosengreen, Sandoz, Commission v Germany)
 Since IDA measure are non-discriminatory, the courts have created a non-exhaustive list
of derogation:
 1. Consumer Protection: (Walter Rao) (Ouestheque)
 2. Protection of Health: (Arganesa)
 3. Protection of Environment: (Commission V Austria)
  Fundamental Rights: (Schmidberger case)
 5. Protection of Culture: (Cinetheque)
 6. Protection of Socio Culture Characteristics: (Torfaca)
 7. Diversity of Press: (Familia Press)

 Monetary Barriers:
 Monetary barriers mean custom duty, tariff, taxation.
 Article 28 TFEU: -
- This article clearly states that the good being imported from a third country into EU
states they should imply a common customs tariff.
 Article 30 TFEU: -
- This clearly states that if the goods are travelling within the EU member states there shall
be no charge nor charge having equivalent effect. ("CEE").
- CEE was defined in the case of (Statistical Levy) as any charge, imposed by virtue of the
goods crossing the border. In the case of iamenterbieders, the charity given the to the
diamond cutters was also considered as CEE.
- Since this was a harsh requirement, the CJEU created certain exceptions to article 30;
1. Administrative service on a voluntary basis
2. If there is an inspection prescribed under EU law (Commission V Germany
3. Internal Taxation (Co-Frutta case).
 Article 110: -
- This states that if 2 products are similar their can be no direct discrimination or
indirect discrimination.
- Similarity is judged on Raw Materials, Manufacturing & Consumer need & Demands.
(Commission v France, Jhon Walker)
- Direct discrimination means practically & legally the tax regime has to be the same.
(Haahr , Luticke)
- Indirect discrimination means practically & legally the tax regime is the same, but
creates a heavier burden on foreign goods (Humlot)
- Article 110(2) clearly states if there are two competing goods then there shall be no
indirect fiscal protection i.e., placing a heavier tax regime on the foreign goods so that
people are bound to take local products.

Free Movement of Services:

  The first issue is in the question is to prove the definition of “Service” under the
EU law where Article 57TFEU clearly states that anything which is temporary in
nature & is provided for remuneration will constitute as a service under the EU’s
Law.
 Article 56 TFEU clearly states that every citizen has the right to provide or receive
a service (Louisi, Cardone, Coila) .Furthermore, there has to be a cross-border
activity where either the provider recipient or the service itself is moving (Alpine
Investments)
 Article 56 TFEU also states that if there any hindrance in FMS, be it DA or an IDA
measure, it will infringe Article 56. DA measures means that restrictions only
apply to foreigner service, whereas an IDA measure is where restrictions apply to
both foreigners and locals service.
 Once an infringement has been proven a country can raise a successful derogation
under Article 52 TFEU where 3 points must be met:
1. Recognized by courts or Treaty
2. Public Benefit
3. Proportionality
 There are four derogations available under FMS:
1. Public Health (only applicable for epidemic or contagious disease)
2. “””””” Security
3. “””””” Policy
4. Illegal Services
 Since IDA measures are non-discretionary, the courts have created a non-
exhausted list when the banner of Public Interest grounds where some of the
examples are set out in the following cases:
 Van Bin Bergan
 Commission v Germany Consumer Protection
 Webb
 Omega Protection Of Human Dignity
 Alpine Investments “””””””” “””” Stock Market
 Commission v Germany, Italy & France “””””””” “” Culture
 Cipollo “”””””””” “” Quality Standards
 De Coster “””””””” “” Environment

Free Movement Of Workers:

  The first issue is to determine the definition of a worker under EU law, where the
present definition comes from the case of Kempf, that the work must be provided
for remuneration & has to be genuine & effective rather than marginal & ancillary.
 Once it has been proven that a citizen is a worker under afticle45 TFEU, all
benefits are granted such as social, tax, residency, family members & education
for children.
 Article 45 clearly states that if there is any kind of hindrance in free movement of
workers be it DA or an IDA measure it will infringe. DA measures mean, the
restriction applies on only foreign workers whereas, an IDA measure restricts both
local & foreign.
 In order to prove IDA measures the concept of dual burden has to be proven.
 Once an infringement has been proven a derogation can be raised where three
points have to be met:
1. Recognized under treaty or courts.
2. Public benefit
3. Proportionality
 There are multiple derogations which are available under S45(3) TFEU such as:
1. Public Health -> Joseman
2. ””””” Policy -> Van Duyn
3. ””””” Security -> Rutili
4. ””””” Service -> Comm v Belgium
5. Linguistic Knowledge -> Groener

Job Seeker:
 Before becoming a worker, the citizen will be considered as a job seeker provided,
he is activity seeking work.
 Under the law for Job Seekers the citizen can only have a write to reside for up to
3 to 6 months & no other benefit shall be granted. (Antonnissen, Collins)

Citizenship:
  The concept of citizenship was established through Article 9 TEU & Article 18 TFEU
clearly states that there shall be no discrimination between EU members.
 Article 21 TFEU states that every member of each member of each member state
can reside in any member state that they want, this means that once you are a
citizen of the EU you will be entitled to all the benefits mentioned under Article
45(2) TFEU.
 Since the law was extremely wide the citizens started to take unfair advantage
when they travelled from poorer member states to richer member states.
 Therefore, the EU commission restricted the law under Article 4 of the directive
2004/38 had prove that their rights are activated by proving 2 points:
1. EU citizens must have moved from 1 member state to another member state
once in their lifetime.
2. Either there is work self-employed, self-sufficient, or pursuing further
education.
 The directive provides that only the union citizens & their family members can rely
under this concept & they cannot be discriminated if they fall within these
categories (Morson).
 Under the concept of family members Article 2 of the Directive, certain
parameters have been defined which includes spouses, registered partners,
children under 21, or any relative who is dependent on health care basis.
 The courts have created a wide law for non-economically active citizens,
specifically for children & multiple cases reflect that the right of citizenship will be
granted on the basis of non-economically active citizens. (Baumbas, Zhu & Chen,
Ruiz Zambrhano)
 The law was again narrowed down in the case of Dersi, where the EU stated that
EU law rights will only be infringed if the citizens must leave the entire the
territory of the Union.
 In the case of Dano, any person who claims an EU citizenship for the purposes of
precuring benefits will not be granted any right.

Charter Of fundamental Rights:

 EU did not have consolidated rights until they introduced the charter of
fundamental rights & recognized in the case of city of ULM.
 Under Article 7 of the charter every person enjoys the right to private or family life
& also under Article 24 it is important for the child to maintain the relationship
with both parents which is in best interest of the child (OSNL).

Competition Policy:
  Article 101 TFEU:
 This article deals in prohibited agreements, where if more than one party tries to hinder
competition, then article 101 will be infringed.
 In order to prove article 101 three points have to be met:
1. There has to an agreement of undertaking or association of undertaking:
- The first issue within this is to prove the definition of undertaking which was
stated in the case Hofner, as any entity engaged in an economic activity.
- The second issue is to prove, whether there is an agreement in the
undertaking, as defined in the case of Consten, as oral, written, vertical,
horizontal or a gentleman’s promise.
- Some time there is no evidence of agreement & therefore we need to see
whether the parties are involved in a concerted practice which was defined in
the case of ICI v Commission as if the parties are coordinating & cooperating
with each other.
- However, there is defense of Oligopoly which can be raised in which the large
producers do not alloy small producers to enter the market & they actually
follow the trend to survive in the market as the market is Oligopolistic (Alstorm
case [wood pulmp])
2. Jurisdictional Point:
- The agreement has the potential to create the competition in more than one
member state.
3. Object or Effect:
- The agreement has a potential to reduce, hinder or distort competition.
 UK introduced the two-stage test in the case of Metropole television which is as follows:
1. Infringement of article 101
2. Exemption under article 101(3)

Exemptions:

 There are four points which need to be proven for an exception article 101(3):
1. There must be a technological or economic progress.
2. Consumers are benefiting.
3. Co-relation with the agreement
4. Agreement is for a sustainable period not an indefinite period.
 If an exception is not met the party has an option to seek for a leniency notice by whistle
blowing to EU commission & getting 100% immunity.
 Article 102 TFEU:

Direct Effect:
 The doctrine of direct effect was introduced by the CJ EU where it was stated that since
the primary purpose of EU was to create a common market, all laws should be
implemented.
 However, CJEU realized that managing issues in 27 member states was difficult & hence,
the CJEU delegated the power to the local courts & introduced the concept of direct effect
in the case of Van Gend en Loos, that if there is conflict between local law & EU law, EU
law shall prevail.
 This doctrine allowed individuals to enforce their rights in the local courts.
 In the case of Van Gend en Loos it was held that direct effect will only be applicable if the
treaty is clear & precise & does not require further legislation to be passed.
 There are 4 sources of EU law which are as follows:
1. Treaty articles: which are the primary sources of EU law.
2. Regulations: which are enacted by the EU commission & are binding upon all 27
member states.
3. Directives: which are enacted by EU commission but require further legislation to be
passed.
4. Decisions: Precedents set CJEU
 We need to understand that all these sources need to be implemented where each source
should have a vertical direct effect as well as horizontal direct effect.
 VD means you can use any of these sources to sue the state.
 HD means you can use any of these sources to sue an individual.
 In the case Van Gen en Loos, treaty article were granted VD & in the case of Sabina treaty
articles were granted HD. Hence, fully implemented.
 Article 288 TFEU, states that all regulations are directly applicable, meaning that they
automatically become part of the local law.
 In the Grad case, decisions were granted VD & HD.
 However, the issue arose with directives as their true nature is that they require further
legislation to be passed & according to concept of DE, directives do not meet the
requirement, therefore they do not have a VD nor HD which creates a loop whole & the
purpose of common market will not be achieved.
 The CJEU granted VD to the directives but, refused to grant HD to since the distinction
between directives & regulation would be blurred.
 However, to fulfill the loop whole three exception were created:
1. Definition of state should be widened to such an extent that if any entity which
directly or indirectly by the government they can rely under directives (Marshall,
Foster v. British Gas.
2. In direct horizontal effect, where if there is a similar local law under member state
then by virtue of rules of interpretation there can be a horizontal effect indirectly
(Von Coulson).
3. State Liability, where the state will be held liable for not implementing a directive or
wrongly implementing. However, there should be a causal link between the grievous
consequences faced by the parties & the state (Francovich, Van Duyn).

Supremacy of EU Law:
 The entire concept of DE is based on supremacy & primacy of EU law. However, different
members states have held that their sovereignty cannot be overridden by the local law.
 It is important to make a comparison between UK, Germany, Italy, France.
 Where parliament is sumpreme in the UK but on the otherhand constitution is supreme.
 This shows that each member state has excepted EU supremacy on a voluntary &
conditional basis, where if they wish to step out of EU they can do so by following a
certain process. The prime example was the UK stepped out of the EU (BREXIT).
 This prove that the doctrine of direct effect is only applicable provided the member states
are part of the EU.
Charter of Fundamental Rights:
 The EU institutions realized that, there was no clear document where basic rights were
consolidated, & therefore, in 2000 the charter was proclaimed & after the treaty of Lisbon
the charter was binding on all EU institutions. (Article 6 TEU)
 Article 51 of the charter, states that, the charter is applicable to the EU member states &
whenever they are implementing the law (Fransson). Furthermore, the rights are
applicable in all the situations within the EU only. In the case of Cruciano the courts held
that, a national measure will be considered when a connection is established & EU law is
above the matters having an indirect effect on each other.
 Article 53 of the charter clarifies that nothing in the charter can be interpreted to the
existing EU law including the ECHR.
 In the case of Mellani, there was conflict between fundamental rights granted by the
Spanish constitution & the European arrest warrant rules. The courts held that although
the national authorities remained free to apply the fundamental rights but the level of
protection provided by the charter cannot be compromised.
 It was clarified in the case of Baver, whilst the directive did not have horizontal direct
effect the charter on the other hand could be applied horizontally.
 There are multiple cases where the CJEU has applied the charter, in the case of
Kucukdeveci, the courts referred to article 21 which relates to discrimination on the
grounds of age.
 Further in the case of Scarlet, the courts held that, stopping an internet service provider
to install a filtering system to prevent IP rights was violating the protection of personal
data.
 In the case of Chakroun, the courts applied the directives in line with the fundamental
rights with particularly the right to family rights.
 However, in the recent judgement of Maximillion & Austrian National complained against
the Irish authorities stating that the laws of the USA did not protect form servailence by
public authorities, however , the courts rejected the claim based on the fact that the
charter guarantees the rights of protecting personal data & this the role of the national
supervisory bodies.
 There are a few articles which are reorganized by the courts:
1. Article 1: Right to human dignity (Brussel v. Green Peace)
2. Article 15 & 16: Freedom to choose occupation & business
3. Article 18 & 24: Right to asylum & child (Hassan, Aguire)
4. Article 28 & 34: Right to strike & social & housing assistance (Laval, Kambaraj)

EU convention of human rights (ECHR):

 EU law uses ECHR when interpreting fundamental rights & this was recognized in the case
of Nold v Commision.
 It also means that on some occasions the conovention of EU recognizes more rights than
the ECHR AM & S.
 EU is not bound
 The EU itself by the ECHR but they have in an obligation to respect whilst implementing
the EU law.
 However, the treaty of Lisbon the accession of the EU to the ECHR became a legal
obligation which would mean that the ECtHR becomes the court for last instance in the
matters of EU law. (Bosphorus v. Transport of London)