EU - Case List

Failure to observe the essential procedural requirement is a ground for annulment of the proposed legislation, the Parliament´s must be consulted when so required by the Treaty  

This case confirmed direct effect of regulations, Italian government chose a wrong method of implementing a regulation and this method cast doubt on the legal nature and direct applicability of that measure Î all methods of implementation were contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Regulations and of jeopardizing their simultaneous and uniform application in the whole of Community

Direct application of Regulation means that its entry into force and its application are independent of any measure of reception into national law. By virtue of the obligations arising from the Treaty and assumed on ratification, MS are under a duty not to obstruct the direct applicability inherent in Regulations and other rules of Community law. Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Regulations throughout the Community.

Applicant wanted to challenge the legality of certain Regulations and notices which formed the legal basis of the Decision they wanted to contest, ECJ held that applicant was directly and individually concerned by the decision, even though it was actually addressed to the Member State

Applicant was allowed to rely on a clause in a Directive which the UK had not introduced into national law -- State cannot rely on its own wrongdoing to frustrate rights of individuals under directives

A MS which has not adopted the implementing measures required by Directive in the prescribed periods may not rely, on its own failure to perform obligations which the Directive entails -- individuals can claim against state rights he or she should have had if the Directive had been correctly implemented

Right of a State to choose among several possible means of achieving the objectives of a Directive does not exclude the possibility for individuals of enforcing before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the Directive alone

possibility of relying on Directives against State entities is based on the fact that under A.189 a Directive is binding only in relation to each MS to which it is addressed and has been established in order to prevent a State from taking advantage of its own failure to comply with Community law Î individuals may not rely on a Directive to claim a right against another individual and enforce such a right in a national court (horizontal NO, vertical YES)

Community law (here Article 6 establishing equal treatment in employment and occupation) must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings which authorises, without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52 -- such legislation was not justified 

National courts may use this 4-part test to decide whether a body was an "emanation of State": 

i. Does it perform a public service?     

ii. Pursuant to a measure adopted by the state?

iii. Under the control of the state?     

iv. Does it have special powers going beyond those of normal commercial undertakings?

decisions are a third form of binding secondary legislation - a piece of legislation that had been enacted as a Regulation was held by the Court to be, in fact, a bundle of decisions  

Certain Acts of EP, though not mentioned in Article 288, bind third parties and because they have "legal effects vis-a-vis third parties" are judicially reviewable

Council resolution was held by the Court to have a legal effect

preliminary ruling jurisdiction - A.267 is a procedure that has been described as the backbone of the Community legal order, it ensures the unity of interpretation of EU law

Trial judge has discretion as to whether to refer with exceptions to matters which fall into scope of cases with compulsory reference - A.267(3)

what is a court or tribunal is for purposes of A. 267 determined by EU and not by national law, CJEU indicated factors it would take to account  -- body in question was an appeals committee form the registration committee established by the Royal Netherlands Society for the Promotion of Medicine -- factors: the body is established by law, is permanent, is independent, has compulsory jurisdiction, has procedures that are inter partes and applies rules of law 

not all of the factors must be satisfied  

CJEU decided that Director of Taxation in Luxembourg was not a court or tribunal for purposes of A.267, the Director was hearing an appeal from a decision of Luxembourg tax authorities and CJEU held that he was not a court or tribunal as he was not independent, he himself had an institutional connection with those who made the original connection 

Case showed that where parties have decided that disputes will be referred to an arbitrator and no public authority is involved in the decision to choose arbitration, then that arbitrator is not a court or tribunal for purposes of A.267

Lord Denning laid down guidelines for discretionary reference:

- the decision on the Q of EU law must be conclusive of the case - decision on the Q is necessary to enable it to give judgment

- national court can follow a previous ruling of CJEU but it may also resubmit a Q in the hope of getting a different ruling

- where the point is reasonably clear and free from doubt, it may use the doctrine of acte clair and not refer 

national court has a discretion which it should exercise with regard to: time lengths, aim not to overload the court with too many references, formulate the Q clearly, point must be difficult & important

Bingham drew attention to CJEU´s expert knowledge of Union law and ability of the Commission and other MS to make representations in cases before CJEU 

Bingham commented on where a referral should be made. "If the question of Community law is critical to the court´s final decision, the appropriate course is ordinarily to refer the issue to CJEU unless the national court can with complete confidence resolve the issue itself... if national court has any real doubt, it should ordinarily refer"  

it is not always mandatory for a court of last appeal to refer and it is important to know that objective of the third paragraph of A.267 is to prevent a body of national case law not in accord with the rule of EU law from coming into existence in any MS

Court held there is no obligation to refer: if it is not necessary (where Q on EU law will not determine the outcome of the case), where CJEU has already given a ruling on the Q (even if the Qs at issue are not identical) and where the matter is an acte clair 

Acte clair

Acte éclaire

correct application of Union law is so obvious as to leave no scope for any reasonable doubt as to the manner in which Q raised is to be resolved

this applies where CJEU has already given a clear ruling on the same point in a previous case

it is possible to bring an action against a MS where breach of EU law was by a court of final appeal, especially where it failed to make a reference as required under A.267(3) - whether infringement of Union law was sufficiently serious when caused by a decision of a national court was to be determined by whether the infringement was manifest - here, on facts, there was not manifest infringement of Union law

Community law precludes national legislation which excludes State liability for damage caused to individuals by an infringement of Community law attributable to a court adjudicating at last instance, by reason of the fact, that the infringement in Q results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that court

decision was not of individual concern to the applicant and thus standing was refused, i.e. they must be singled out in the same way as the initial addressee, they must be part of a closed group or a closed circle of persons who were known at the time of the adoption of a decision

two groups of applicants and one group was held to have standing, CJEU held that the other group were not individually concerned, complex infrastructure was not sufficient to establish individual concern, but those who already entered Ks for sale into France to take effect during that period were given standing 

Advocate General Jacobs´ proposed a new test for individual concern: "in my opinion, it should therefore be accepted that a person is to be regarded as individually concerned by a Community measure where, by reason of his particular circumstance, the measure, or is liable to have, a substantial adverse effect on his interests"

- requirement if individual concern no longer applies to a Regulatory Act, only direct concern

- generally, individuals could not challenge Regulations because their legal effects apply in a general and abstract manner 

TEST 1: THE GENERAL APPLICATION / ABSTRACT TERMINOLOGY TEST 

Is it a true Regulation? 

1. Is it phrased in general terms and applies to categories of persons viewed in a general and abstract manner?

2. If yes, then it cannot be a disguised decision and cannot be of individual concern to the applicant - with one exception: Codorníu

3. Is the applicant part of a closed group? 

TEST 2: CLOSED CATEGORY TEST 

1. If the Regulation applies to a closed category, Courts may use this test in cases which deal with a completed set of past events where Regulation related to a fixed, closed set of traders and was therefore a disguised Decision. 

here, a measure was held to be a true Regulation and yet to be of individual concern! - contested Regulation said that the word crémant should be used exclusively for wines from FRA or LUX and applicant was making sparkling wines in SPA, it was held to be a true Regulation of legislative nature and applied to traders in general, but this did not stop it from being of individual concern to applicant because of the use of the word crémant in his trademark 

CJEU applied the abstract terminology test to deny standing despite the fact that the identities of the companies could be determined 

the only iso-glucose producer in Spain was seeking to challenge a Regulation which laid down sugar prices in Spain and General Court refused them standing - it held that they were only affected in their objective capacity as iso-glucose producers in the same way as any other trader in the sugar sector who actually or potentially is in an identical position - it seems clear that judgment in Codorníu was determined by its particular facts

there is another exception where the applicant was part of a closed group which had previously been awarded a quota and was specifically mentioned by name in an annex to the Regulation - company in this case was held to be individually concerned like this 

Greenpeace and other applicants specifically argued for a liberalisation of rules on standing, but this was rejected by the CFI which restated the Plaumann approach Î it was held that interest groups do not have locus standi here individuals they represent are not individually and directly concerned 

this case shows a very tough application of the test for direct concern, Commission refused to increase the quota for aluminium allowed into Belgium and this decision was challenged by the applicant who was an importer of aluminium CJEU held he was not a person of direct concern because even if Commission increased the quota, the decision would not have required Belgium to increase it too and it might have decided not to do so 

Although French government had discretion as to whether to introduce the system of quotas provided, Court held that this was entirely theoretical because FRA had applied for stricter quotas than had been authorised - French government would clearly impose the quotas if authorised to do so - therefore there was in fact no discretion on the part of French government and the decision of the Commission was of direct concern to the applicants

Bock was held to be directly concerned because the German authorities had informed him that they would refuse his application as soon as they received a decision from the Commission permitting them to do so 

General Court determined that scope is not limited to delegated acts as regulatory acts constitute a more general application - the meaning of "regulatory act" must be understood as covering all acts of general application apart from legislative acts. Consequently, legislative act may form the subject-matter of an action for annulment brought by a natural or legal person only if it is of direct and individual concern to them. -  ECJ supported this.

infringement of an essential procedural requirement constitutes a valid ground for a review, here it was the failure to give reasons for a refusal of access to Commission documents

failure to observe the essential procedural requirement is a ground for annulment of the proposed legislation, the Parliament´s position in the EU legal order had developed into a stage where it must be consulted when so required by the Treaty 

Applicant was allowed to rely on a clause in a Directive which the UK had not introduced into national law - state cannot rely on its own wrongdoing to frustrate rights of individuals under directives å Article of a Treaty could have direct effect if:  

i. it is clear and precise

ii. it is unconditional 

iii. its operation does not require a legislative implementing measure on part of the state 

iv. (it must lay down a negative prohibition rather than a positive obligation) 

Azienda Agricola (2001) - provision must be sufficiently clear and precise to be enforced by a court, here a Regulation on improving efficiency of agricultural structures was not allowed to be relied on at a national court by limited companies seeking to obtain the status of farmers practising farming as their main occupation where legislature of a MS has not adopted the exact provisions necessary for implementation in the national system 

Commission v Italy (Re Slaughtered Cows) (1973) - this case confirmed direct effect of regulations, Italian government chose a wrong method of implementing a regulation and this method cast doubt on the legal nature and direct applicability of that measure - all methods of implementation were contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Regulations and of jeopardizing their simultaneous and uniform application in the whole of Community

Tachographs (1979) - MS cannot apply incomplete or selective manner provisions of a Community Regulation so as to render abortive certain aspects of Community legislation which it has opposed or which it considers contrary to national interests - for a State to unilaterally break the equilibrium between advantages and obligations flowing from its adherence to the community brings into Q the equality of Member States 

Case where the fourth requirement was dropped, and the other three suggesting that direct effect will be the exception rather than a rule have been whittled away 

It was held that Ms Defrenne could bring an action against her employer for breach of a Treaty Article requiring equal pay for men and women, requirement that a measure must not be dependent upon further action is not the obstacle that it appears, wherever Treaty includes time limit within which such further action should take place, Court has held that, once time limit has expired, measure has direct effect 

decisions are binding in their entirety on those to whom they are addressed, CJEU held that Decision can have direct effect - here a national of a MS to which a Decision had been addressed could invoke that Decision in the national court, CJEU emphasized that this would increase the effectiveness (effet utile) of the Community measure 

provisions of the international agreement General Agreement on Tariffs and Trade were held not to have direct effect because they were insufficiently precise and unconditional for direct effect to apply  

X under very limited circumstances a GATT provision could prevail over an EC provision but only if relevant EC provision expressly referred to the GATT provision! 

free trade agreements were also held not to be capable of creating direct effect as their aim was not to create a single market, here similar terms used in Treaty were used in an agreement between EEC and Portugal, but this was not a sufficient reason for applying direct effect since the agreement's rules disputed were on protection of industrial and commercial property rights and they were subsidiary to Community rules on the free movement of goods

X another provision of the same agreement as in Polydor was found to have direct effect because the provision fulfilled the conditions and fell within the purpose of the agreement - Portugal was not a MS at the time but did become soon after 

Ms van Duyn could rely on a clause in a Directive which the UK had not yet introduced into national law, there were two reasons: first, the Directive conferred on individuals rights which were enforceable by them in courts of MS and which national courts must protect - vertical direct effect, and second, a MS should not be able to rely on its own default to implement a Directive within a stipulated time limit 

where MS is at fault (i.e. has not implemented a Directive within a stipulated time limit), an individual can claim against the state the rights he or she should have had if the Directive had been correctly implemented

there is no horizontal direct effect for Directives established yet, individuals cannot invoke Directive rights against another, because individuals are not to blame for the MS' non-implementation of the Directive 

there were proposals for horizontal direct effect, but CJEU did not follow Advocate General opinion and confirmed original rule; directives can only have vertical direct effect 

the Court did not mention the question in a judgment in a case between two individuals and confined itself to dealing with the incompatibility of the national legislation with Community law where a general principle of Community law (nondiscrimination) was concerned - this at first sight looked like a purely horizontal case, but CJEU resorted to other measures to give effect to Union law - it asserted that it was the responsibility of the national court to guarantee the full effectiveness of the general principle by setting aside the national legislation even before the date of expiry of the implementation period 

national courts may use this 4-part test to decide whether a body was an "emanation of state":

1. Does it perform a public service?

2. Pursuant to a measure adopted by the state?

3. Under the control of the state?

4. Does it have special powers going beyond those of normal commercial undertakings?

CJEU has been willing to give incidental horizontal effect to Directives in triangular situations; if, under domestic law, a rule serves as a basis for enabling administrative regulations containing rules binding on the persons concerned to be adopted, so that by itself it has no legal effect for individuals, the rule does not constitute a technical regulation within the meaning of the Directive, but if it obliges undertakings to apply for prior approval of their equipment, it must be classified as a technical regulation, even if the administrative rules envisaged have not been adopted (other cases with same reasoning: Panagis Pafitis (1996), Unilever Italia (2000)) 

Claim as originally vertical and failed to have direct effect because of its insufficient precision X CJEU held that national court is under a duty to interpret existing national law so far as possible, to achieve the result laid down by the Directive (courts are required to take any appropriate measures to fulfill their obligations under the Treaties

Article 4(3) TEU) - principle is, that a court is under a duty to interpret legislation "as far as possible in accordance with the wording and the purpose of EU law, in order to ensure the fulfilment if their obligations" 

duty of harmonious interpretation applies in relation to all national legislation, whether passed before or after the relevant Union legislation and whether intended to implement it or not, and because it is a rule applicable to the courts, rather than the parties, it applies irrespective of whether the action is vertical or horizontal

application of the doctrine is subject to the general principles of law, such as legal certainty and non retroactivity 

the doctrine cannot be applied where it would give rise to, or aggravate, criminal liability

same immunity does not apply to cases in relation to imposition of civil liabilities on individuals Î duty to interpret national legislation in the light of the wording and purpose of Community law applies even when this would impose a civil liability on private parties 

CJEU: it would be difficult for EU to carry out its task effectively if the principle of loyal cooperation... were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between MS and the institutions

CJEU has from the beginning stipulated that the remedy obtained must comply with 2 principles: 

 1. principle of equivalence Î the remedy for EU law right should be no less favourable than those relating to similar domestic claims 

 2. principle of practical possibility Î remedy should not be such as in practice to make it virtually impossible or excessively difficult to obtain reparation 

 3. (Van Colson added a third requirement - the remedy should be an effective deterrent) 

case established the principle of indirect effect, and also, CJEU here insisted that remedies provided by national law must be effective, adequate, should act as a deterrent and guarantee real and effective protection  

requirement that national remedies for breach of Community law rights should be adequate and effective was a new, universal requirement to be applied to all such remedies 

this is a case exemplifying an adequate and effective remedy - remedy chosen was a compensation and if the Court applied the upper limit, it would not provide an adequate remedy (it prevented her from receiving full compensation, since it did not include interest) --- thus it must have no ceiling and must include interest 

all persons had the right to obtain an effective remedy in a competent court against measures which they considered to be contrary to the principle of equal treatment as laid down in the Directive and the certificate could not be conclusive

Emmott tried to bring an action relying on a Directive, she was told that due to national procedural rules, her claim was time-barred and that the time has expired. On reference whether it was contrary to Community law to rely on the time limits, CJEU held that time limits do not start to run until after the proper transposition of the Directive, so she was not, after all, out of time - time limits are reasonable in principle, but national government cannot rely on its own default in implementing the Directive late 

national rule restricting the retroactive effect of a claim for benefits for incapacity to work was in accordance with Community law - Court considered this only with reference to the two principles (equivalence and practical possibility) and held that the national rule in question satisfied those conditions

Article 19 TEU - Court is obliged to ensure that in the interpretation and application of the Treaties the law is observed, MS are obliged to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law   

Article 51 of the CHFR - CJEU is obliged to respect the rights, observe the principles and promote the application of the Charter as part of its interpretative obligation 

Article 47 - everybody is entitled to a right to an effective remedy and to a fair trial which contains an entitlement to an effective remedy before a tribunal if Union law right is infringed and a right to legal assistance for those who lack sufficient resources 

here company DEB was refused legal aid on the ground that the conditions laid down under German law for granting such aid to legal persons were not satisfied - effectively, the rule prevented a legal person (a company) as opposed to a natural person, from applying for legal aid as they were forced to make an advanced payment which natural persons were not obliged to do --- CJEU held that DEB could rely on Article 47 in order to relieve themselves from making the advance payment and that it was for national court to ascertain whether this provision in relation to legal aid constituted a denial of effective access to justice (which if they did, they would affirm)

Case concerned a total failure of Italian authorities to transpose a Directive into Italian law - CJEU declared that the principle of state liability was inherent in the scheme of the Treaty, basing these observations on inter alia on the principle of effectiveness Court laid down 3 conditions for state liability for complete failure to transpose a Directive:  

1. the Directive must be intended to confer rights on individuals

2. the content of those rights must be ascertainable from the terms of the Directive

3. there must be a causal link between the loss suffered and the MS's breach 

state liability can be imposed even where the law does not have direct effect, state liability was first applied to Directives, now it can apply to all forms of EU law (here it was the Treaty Articles) but the liability is not strict, there must be a sufficiently serious breach for the state to be held liable in damages  

CJEU held that the non-implementation of a Directive is always a sufficiently serious breach, so only the Francovich conditions need to be fulfilled when Directives are disputed

incorrect transposition of a Directive was held to be not sufficiently serious breach because the wording of the EC Directive was unclear and several other MS had also unintentionally misinterpreted it 

a public body separate (!) from state was liable under the principle of state liability

CJEU held for the first time that it was possible for state liability to apply where the alleged infringement stemmed from a decision of a national court of last instance

by entering into EC Treaty, MS had limited their sovereign rights and that Community law could not be overridden by domestic legal provisions

A was allowed to rely on a clause in a Directive which UK had not introduced into national law - state cannot rely on its own wrongdoing to frustrate rights of individuals under directives - moreover, here it was stated implicitly that EU law is supreme over UK law 

Community law takes precedence even over a fundamental rule in the German national constitution  

Court held that national courts, even a low court of first instance, have a duty to set aside provisions of national law which are incompatible with EC law - there was no need to wait for the national law to be amended in line with national constitutional procedures: the national rule had to be set aside immediately if it conflicted with a directly applicable or directly effective Community provision 

the obligation to set aside conflicting national rules was held to apply also to administrative agency dealing with a national social insurance scheme

tension between the UK doctrine of Parliamentary sovereignty and the separation of powers on one hand, and the Union doctrine of supremacy on the other - HOL had to use the purposive approach (instead of UK literal) and stated that Miss Pickstone was entitled to claim on the basis of work of equal value  

1972 Act did not allow UK court to distort the meaning of a UK statute in order to enforce a Community Directive which does not have direct effect

national courts may use this 4-part test to decide whether a body was an "emanation of a state":

i. Does it perform a public service?

ii. Pursuant to a measure adopted by the state?

iii. Under the control of the state?

iv. Does it have special powers going beyond of commercial undertakings? 

UK court again must have used purposive interpretation in order to construe statutes as far as possible in conformity with European law 

case concerned a wrongful dismissal for pregnancy, Marleasing principle applies whether the domestic legislation came after or preceded the Directive, Lord Keith: it is for UK court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by ECJ if that can be done without distorting the meaning of the domestic legislation

sometimes the method of collecting taxes can in itself result in discrimination: importers were required to pay the tax immediately, whereas domestic producers had several weeks to pay (period of grace) - this was discriminatory & constituted a breach of A110

ECJ ruled that wine was not similar to beer, since different raw materials and production methods were used and the products had different characteristics --- if not similar for purposes of A110(1), is it competing for the purpose of A110(2)? Competing products fulfill the same consumer need, British were not great wine drinkers and tax on wine was higher than on beer - light wines at the cheaper end of the market were held to be competing with beer

higher tax was imposed on light tobacco cigarettes than on dark ones - ECJ decided that light and dark tobacco products were similar (they were made from the same basic raw materials, had similar properties and fulfilled the same consumer need) 

national rules required Danish ports to impose a 40% surcharge on the basic charge paid for goods unloaded from ships - the tax was imposed only on goods loaded on ships arriving from outside Denmark and thus constitute direct discrimination on the basis of origin and moreover, direct discrimination can never be justified 

in indirect discrimination, it is necessary to prove that there is a protective effect, here a system of progressive taxation for no objective reason operated to the disadvantage of cars imported from other MS - it had a discriminatory or protective effect prohibited by the A110

system of taxation of products in which the amount of the taxes increases progressively according to an objective criterion is not prohibited by Community law and cannot be regarded as discriminatory solely because only imported products, in particular those from other MS, come within the most heavily taxed category 

by reason of the taxation of synthetic alcohol, it has been impossible to develop profitable production of that type of alcohol on national territory, the application of such tax arrangements was not considered to be constituting indirect protection - indirect discrimination can be justified and here it was justified on grounds of industrial policy justification 

indirect discrimination can be justified and here it was justified on grounds of regional policy justification to support poor regions of France 

if the breach is of A110(2) - competing products: it is not necessary that rates of tax be identical, MS must ensure that rates are such that there is no protective effect for the competing domestic product

even where provisions on non-discriminatory taxation have been included in the relevant Free Trade or Association Agreement in relation to third-country goods, Court has given a more limited interpretation to them

where goods are imported from third country with which EU has no such agreement, A110 does not apply - A110 applies only to products form the MS and where appropriate, to goods originating in non-MS which are in free circulation in the MS - it follows that provisions are not applicable to products imported directly from non-member countries 

Irish Goods Council was found to have state funding and direct state involvement in the appointment of its Management Committee - Council was a public authority capable of issuing relevant state measures - CJEU held its activities were subject to A34

MEQR = all trading rules enacted by MS which are capable of hindering, actually or potentially, directly or indirectly, intra-Community trade Î this definition of MEQR focuses on hindrance rather than on discrimination per se 

A36 must not be used to support arbitrary discrimination or disguised restrictions - UK ban on sex dolls from Denmark was disproportionate since, within UK, sale of such dolls was not banned, although there were certain restrictions on how and where they could be sold

it cannot be used for purely economic reasons 

 CJEU held that maintenance of regular oil supplies which were fundamental to the existence of the state, was a legitimate aspect of public security

CJEU confirmed that MS can adopt their own precautionary measures in situations where the precise risks to health are uncertain, but said that any such precautions must be necessary and proportionate 

proper application of the precautionary principle:

1. the identification of the potentially negative consequences for health

2. a comprehensive assessment of the risk for health based on the most reliable scientific data available and the most recent results of international research

3. where data on the existence or extent of the alleged risk is insufficient, inconclusive or imprecise, but the likelihood of real harm to public health persists should the risk materialize, the precautionary principle justifies the adoption of restrictive measures 

 e.g. in Commission v Italy (Caffeine) (2003) this burden was not discharged 

such measures apply to both domestic and imported goods equally in law, in fact, they impose an extra burden on imported goods

here it was the German requirement that fruit liqueurs have an alcohol strength of 25%, French blackcurrant liqueur, Cassis, had a strength of 15-20% and therefore could not be sold in Germany - the German rule, although apparently non-discriminatory, in fact, made it impossible for French manufacturers to export Cassis to Germany, thus making it indistinctly applicable and in breach of A34. imported goods can be subject to the national rules only if the following is fulfilled: 

1. the rule in Q applies equally to domestic products

2. the rule is necessary to protect an essential public interest (mandatory requirement)

3. it is proportionate (it is not more restrictive than necessary to protect the interest) 

Belgian rules required margarine sold in Belgium to be packaged in cube-shaped containers, packaging rule was to prevent confusion with butter - this rule was held not to be imposed on imported margarine because of its disproportionate character - clear labelling would be enough to prevent confusion and thus protect the consumer 

PUBLIC HEALTH 

CJEU has ruled that as A36 provides for derogation on this ground, the Treaty Article should be used in preference to mandatory requirements 

Austria put in place a ban on lorries over 7.5 tonnes transporting certain goods using the A12 highway for a distance of 46 km --- the road is the main transit route between the south of Germany and Italy --- CJEU accepted this was justified under the mandatory requirement of protection of the environment but held that was not proportionate

A30 does not apply to national legislation regulating distribution of cinematographic works by imposing an interval between one mode of distributing such works and another by prohibiting their simultaneous exploitation in cinemas and in videocassette form for a limited period, provided that the prohibition applies to all video-cassettes (whether domestic or imported) and barriers do not exceed what is necessary

where a MS relies on overriding requirements, such as maintaining press diversity, under A30 in order to justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principles of law and in particular fundamental rights

Court said that limit should be placed on types of measures encompassed by A34  - Court declared that contrary to what has previously been decided, A34 would not apply to certain selling arrangements, provided that they apply to all relevant traders in the national territory and effect in the same way, in law and in fact, marketing of domestic products and those from other MS - judgment created two categories of trading rules: 

product requirements - affect the goods themselves and are still governed by the existing rules on discriminatory and dual burden measures 

selling requirements - do not require any change to the product itself but only restrict the way it is marketed - as such the latter fall outside the scope of A34 and are legal (they do not have to be justified or proportionate under EU law) 

restriction on where baby milk powder could be sold, here it did not affect the sale of products in other MS any differently 

large cash prizes for competitions in magazines, Familiapress brought action against a German publisher of weekly magazines which were being sold in Austria and which offered large cash prizes for crossword competitions - this was held not to be a selling arrangement under Keck because the law bears on the actual content of the products, the competitions in Q form an integral part of the magazine since it requires traders to alter contents of the periodicals (it is MEQR and falls within the scope of A34) 

Italy prohibits mopeds, motorcycles, tricycles, and quadricycles form towing a trailer, ECJ examined whether Italy was in breach of Treaty with regards to trailers which were specifically designed to be towed by motorcycles and were legally produced and marketed in MS other than Italy --- rule was an MEQR and prohibited by A34 

establishment is pursued on a stable and continuous basis, services are temporary in nature (classification depends on duration, regularity, periodicity and continuity of the provision of the services 

on the other hand, host state's rules should not be applied to the same extent to a person providing services on a temporary basis, since they already have to comply with rules in their home state and this would amount to a dual burden

Article 56 basic rule abolishing restrictions on freedom to provide services

Art 56. has direct effect 

UK company provided services throughout the EU, it operated lawfully in the UK but did not meet the requirements of German law, the requirements were disproportionate  å freedom to provide services may be limited only by national rules which are: 

1. non-discriminatory

2. justified by imperative reasons relating to the public interest

3. necessary

4. proportionate 

temporary nature of the activities in Q are to be determined in the light of its duration, regularity, periodicity and continuity 

French law provided compensation for injuries to French nationals and residents who were victims of crime but this rule was not provided for non-residents and when Cowan was robbed and injured, he was protected by A.56 

national rule required prior authorisation in order for competent institution to be responsible for payment for treatment planned in another MS and involving the use of major medical equipment outside a hospital setting - due to the dangers to the organisation of public health policy and the financial balance of the social security system, such requirement was a justified restriction

Netherlands prohibited cold calling (uninvited telephone sales) for the sale of commodities on the futures market to non-professional investors, Dutch rule was held to be justified and proportionate on the grounds of protecting the reputation of the Dutch financial sector

temporary nature of the activities is to be determined in the light of its duration, regularity, periodicity, and continuity - provider of services may equip himself with some form of infrastructure which is necessary for the purposes of performing the services in question (office, chambers...) 

cable and satellite services were taxed differently, because cable services were not subject to the same taxation, the tax on satellite services interfered with the provision of services - Belgian justified the rule on grounds that it was necessary to control the uncontrolled proliferation of satellite dishes and preserve the quality of the environment 

in Germany laser-games are regarded as trivialising violence and infringing the fundamental right of human dignity guaranteed in the German Constitution - Omega argued that the German measure prohibiting them from introducing such a game in its laserdrome was in breach of A.56

Finnish rules that considered winnings from lotteries held in other MS as taxable income while holding that winnings from lotteries held in Finland were not taxable, were contrary to A.56 

Irish student organisation illegally distributed leaflets in Ireland about abortion available in UK, the Court avoided having to decide whether a legitimate interest was being protected by holding that as students were not themselves connected with the service providers, they were not covered by A.56

measures which are more difficult for non-nationals than nationals to comply with but nevertheless apply to both are indirectly discriminatory and are also encompassed within the Article 49 

administrative procedure which the person must follow to verify his postgraduate academic title must be easily accessible and not call for the payment of excessive administrative fees, the administrative decisions must be subject to judicial review and person must be able to ascertain reasons for the decision

Italian rules prohibiting the establishment of chambers by non-national lawyers in the host state could only be imposed on non-nationals if four conditions were met: 

- the rules were applied in a non-discriminatory manner

- they were justified by an overriding general interest

- they were a suitable means of achieving the objective

- they did not go beyond what was necessary 

Daily Mail claimed that the UK statutory requirement that companies transferring their central management abroad must obtain Treasury permission first was an obstacle to the freedom of establishment X Court held that A.49 conferred no directly effective right to transfer a company's principle place of business in another MS without restrictions. 

Danish company established a company in the UK to avoid the minimum share capital requirements of its home MS but then continues to carry out its business activities in Denmark through a branch set up there - it was not abuse for A.49 for nationals of one MS to choose to form a company in another MS whose rules on company law were less restrictive and then to set up secondary establishments in other MS and carry out most, or even all of its business in those other MS

according to UK tax law it is possible for a parent company and its subsidiaries which are all resident in UK to deduct losses incurred by one member of the group against the taxable profits of other companies of the group --- it was held that UK tax law was in breach of the freedom of establishment

Greek lawyer specialised in German law and was working in Germany but was refused admission to the German bar because she lacked German legal qualifications; where there is a shortfall in applicant's formal qualifications, MS must examine the A's experience to see if it makes up the difference. 

in past, Court has held that individuals may not rely on A.49 against their home state for the recognition of qualifications received in another MS

Italian legislation imposing maximum fee tariffs for lawyers complies with the fundamental freedoms of the internal market - Italian law did not deprive other MS lawyers of the opportunity of gaining access to the Italian market under conditions of normal and effective competition

Italian national qualified as a dentist in Turkey, his qualification was not recognised under the EU Directive for dentists but he worked for 8 years in Belgium, he was refused job in German social security system and was told he needs 2 more years of training --- mere fact that a particular qualification is not listed in the Directive, giving automatic right of recognition, does not mean a MS can refuse to accept it even if it was obtained in a nonMS  

(UK, Ireland, and Denmark are not part of the Directive)

EU overstepped when tried to harmonise national laws by an EU-wide ban on all forms of tobacco advertising and sponsorship Î the rule did not genuinely improve conditions for the establishment and functioning of the internal market, it went too far

MS are obliged to recognize goods which have been produced in another MS even in the absence of harmonized standards - this principle would apply automatically unless MS could justify a restricting measure by reference to a mandatory requirement or A.36 TFEU 

The directive did not deal with vitamins so it was possible for MS to invoke A.36 to justify the imposition of its own rules on the vitamin content of imported goods.  

conditions under the provision, that restrictive measures must be based on new scientific evidence, arising after the implementation of the harmonising measure which results in problems specific to the MS, are cumulative in nature and must all be satisfied if the derogating national measure concerned is not to be rejected by the Commission

UEFA transfer rules hindered him from transferring to play for another club, the rules applied to all players (they were non-discriminatory) - nevertheless the Court held that the rules were capable of hindering access to employment and thus illegal

worker is not exclusively someone who is currently employed, but it also covers persons likely to remain in territory of a MS after having been employed in that state

concept of workers applies to those engaged in part-time work for less than minimum wage

work engaged by a worker must be provided for remuneration and be effect and genuine, not marginal or ancillary

remuneration was deemed to include the situation of trainee teachers working under supervision and receiving remuneration for giving lessons to pupils - the work itself must be an economic activity 

the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration, as long as an effective and genuine activity is pursued, the level of productivity, the source of the funds from which the remuneration is paid and the nature of the legal relationship between the employee and the employer are of no consequence in regard to whether or not a person is to be regarded as a worker 

if a person is actively seeking work and has a genuine chance of success, they must be allowed to stay and exercise right to move and stay within the host MS for the purposes of seeking employment - MS must allow a reasonable period

level of linguistic knowledge must be proportionate (it must relate to actual demands of the job and not be set too high), access to employment also must not be restricted by indirectly discriminating requirements 

MS can restrict access for non-nationals to employment in public service - A.45(A), there must be a special relationship of allegiance to the state and reciprocity of rights and duties which form the foundation of the bond of nationality

any requirements for a period of residence would infringe the free movement of persons: requirement for a person to be entitled to income support for them to be resident in Luxembourg for five years out of the past 20 years was held to be a breach of A.45

a German national working in China successfully challenged the deportation of his Columbian wife ordered by UK immigration authorities Î children of migrant workers should be allowed to continue their education in the host MS even if their primary carer parent was in danger of losing residence either due to divorce or because the migrant worker has ceased to work there + the child's primary carer should be allowed to reside in the MS (A.8 ECHR) 

CJEU recognised a certain amount of discretion for the UK court and held that it could still refuse entry to miss van Duyn on the basis that her conduct was socially harmful, although the Scientology movement by which she was employed was not prohibited by the UK - right of residence may be refused to nationals of other MS even when it could not refuse its own nationals 

a Chinese couple traveled to Northern Ireland to give birth to their second baby to avoid the one-child policy in China and also to gain Irish nationality for the child Î baby became an EU citizen å when parents were ordered to leave from England, they relied on their daughter's right to reside within the EU - regardless of motives of the individuals concerned in traveling to Ireland, to deprive the mother of residence would be to effectively deprive the child of its right to residence as provided under Article 21(1) TFEU

The UK/Irish national was in receipt of state benefits, she later married a Jamaican who could not stay in the UK - Directive 2004/38 is not applicable to a Union citizen who has never exercised their right of free movement, who has always resided in a MS of which they are a national and who is also a national of another MS - A.21 is not applicable provided that the situation of that citizen does not include the application of measures by a MS that would have the effect of depriving them of genuine enjoyment of their EU citizenship 

Court did not find a violation of a fundamental right of economic liberty being violated, nevertheless the Court recognised fundamental rights as a general principle of Union law 

it was immaterial whether a fundamental human right had its source in a national constitution or the Union legal order as a general principle of law, since EU law would protect such a right whatever its source 

where MS attempts to rely on a public policy or public interest derogation to expel or to refuse a benefit to a migrant, MS must take adequate account of the impact of their actions on the right to family life protected by A.8 ECHR 

Court held it had no power to examine the compatibility of the ECHR with national law which concerned an area which falls within the jurisdiction of the national legislator