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Conferral and Subsidiarity


The Effects of EU Law
The Charter of Fundamental rights
The Principle of Proportionality
The Principle of Non discrimination
The Principle of Legal Certainty

Lecture: Conferral and Subsidiarity


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C-210/03 Swedish Snus Case


Establishes that any measure genuinely intended to remove any actual or
potential obstacles to the internal market can fall within the competence of the
EU.
C-210/03 Swedish Match
C-508/08 Vodafone
C376/98 Germany vs. Parliament and Council

Lecture: The Effects of EU Law


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C-26/62 Van Gend en Loos

Establishes that provisions of the Treaty Establishing the European Economic


Community are capable of creating legal rights which can be enforced by both
natural and legal persons before the courts of the Community's member states.
This is called the principle of direct effect.
C-6/64 Costa vs. ENEL
Establishes the supremacy of European Union law over the laws of its member
states. This principle requires EU law to have a higher normative value, and has
to be given effect even in the presence of conflicting national norms.
C- 106/89 Marleasing
Establishes an obligation for national courts to interpret national law in light of EU
law, and should, as far as possible, be given an interpretation which is in
conformity with EU law (all EU law, not just the one which has direct effect).

Lecture: The Charter of Fundamental rights


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C399/11 Melloni
C-617/10 kerberg Fransson
C-34/13 .XLRQRYi

Lecture: The Principle of Proportionality


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C-523/12 Dirextra
Proportionality, appropriate measure
C-58/08 Vodafone
C-356/12 Glatzel

Lecture: Non-Discrimination
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C-127/07 Socit Arcelor Atlantique et Lorraine and Others


Principle of equal treatment, objective justification.
C-185/96 Commission vs. Hellenic Republic
Direct discrimination on grounds of nationality.
C-25/02 Rinke
Indirect discrimination on grounds of sex. Justification on objective requirements.

Lecture: The Principle of Legal Certainty


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C-43/75 Defrenne
Established that the principle of equal pay between men and women had
horizontal direct effect. Legal certainty.

Lecture: Conferral and Subsidiarity


Suggested Reading:
Basic overview
x Europa Guide to the Treaties: Division of Competences within the Union
(European Commission, 2010). Available at:
http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/
ai0020_en.htm
x Europa Guide to the Treaties: The Principle of Subsidiarity (European
Commission, 2010). Available at:
http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/
ai0017_en.htm
These pages has a number of links to Treaty articles and other resources which
the student is encouraged to follow in order to get a basic overview of this topic.
Going deeper
x Thomas, M. Subsidiarity: assessing an EU Proposal. United Kingdom House of
Lords Select Committee publication, available at:
http://www.parliament.uk/documents/lords-committees/euselect/subsidiarity/apply-subsidiarity.pdf
x S R Weatherill, 'The limits of legislative harmonisation ten years after Tobacco
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German Law Journal 827, available at:
http://www.germanlawjournal.com/index.php?pageID=11&artID=1344 (the
German Law Journal is an open access journal, free to all).
x Christoph Ritzer, Marc Ruttloff and Karin Linhart, How to Sharpen a Dull Sword
The Principle of Subsidiarity and its Control, 7 German Law Journal 733-760
(2006),
available
at
http://www.germanlawjournal.com/index.php?pageID=11&artID=755
Lecture: The Charter of Fundamental rights
Suggested Reading:
x Opinion 2/13 (meddelas den 18 december 2014)
Lecture: The Principle of Proportionality
Suggested Reading:
x Koen Lenaerts och Piet van Nuffel, European Union Law, 3 rd ed, Sweet &
Maxwell, 2009.

Lecture: Non-Discrimination
Suggested Reading:

Basic overview:
x Eurofond Information Sheet on Discrimination (2014, European Commission)
available at:
http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/dis
crimination.htm
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WKHSULQFLSOHRIQRQ-GLVFULPLQDWLRQZKLFKWKHVWXGHQWLVHQFRXUDJHWRFOLFNRQLQ
order to get a basic overview of those other concepts.
Going deeper:
x De Schutter, Olivier, Three Models of Equality and European Anti-Discrimination
Law Northern Ireland Legal Quarterly, Vol. 57, no. 1, p. 1-56 (2006) . Available at
SSRN: http://ssrn.com/abstract=2446901
x Christopher McCrudden and Sacha Prechal The Concepts of Equality and NonDiscrimination in Europe: A practical approach; Report of the European Network
of Legal Experts in the Field of Gender Equality (European Commission, 2009).
Available at: http://ec.europa.eu/social/BlobServlet?docId=4553&langId=en

EU Law: What is the Principle of Proportionality & Subsidiarity?


Written by Claire Bradley - Last Updated Saturday, 23 April 2011 13:22

What is the Principle of Proportionality & Subsidiarity?


The principle of proportionality and subsidiarity is extremely important because it underlies
everything the European Union does in areas where it does not have the right of exclusive
competence.

In plain English it means that the EU should not get involved in matters which do not concern it.

The official version runs as follows:

"1. The limits of Union competences are governed by the principle of conferral. The use of
Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,
the Union shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local level,
but can rather, by reason of the scale or effects of the proposed action, be better achieved at
Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol
on the application of the principles of subsidiarity and proportionality.

4. Under the principle of proportionality, the content and form of Union action shall not exceed
what is necessary to achieve the objectives of the Treaties. (Article 5 of the Treaty on European
Union)

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EU Law: What is the Principle of Proportionality & Subsidiarity?


Written by Claire Bradley - Last Updated Saturday, 23 April 2011 13:22

What this means in practice is that the European Commission must justify the relevance of any
proposals against the principle, and in fact, when proposals go to the European Parliament
committees it is one of the first tests they consider.

If you feel that a proposal is just another example of over regulation, i.e. it is entirely
disproportionate, then you may have strong grounds for opposing it on the grounds of
proportionality.

Equally, if you believe that the issue being addressed by the legislation is not trans-european,
and should therefore be addressed by individual Member States then again you might have
grounds for opposition on the grounds of subsidiarity.

See also the article "What arguments can I use" in our How Do I section.

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The principle of subsidiarity

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The principle of subsidiarity


INTRODUCTION
The principle of subsidiarity is fundamental to the functioning of the European Union
(EU), and more specifically to European decision-making. In particular, the principle
determines when the EU is competent to legislate, and contributes to decisions being
taken as closely as possible to the citizen.
The principle of subsidiarity is established in Article 5 of the Treaty on European Union. It
appears alongside two other principles that are also considered to be essential to
European decision-making: the principles of conferral and of proportionality.
The Protocol on the application of the principles of subsidiarity and proportionality also
defines the implementation of the principle of subsidiarity. In addition, the Treaty of
Lisbon has considerably strengthened the principle of subsidiarity by introducing several
control mechanisms in order to monitor its application.
DEFINITION
The principle of subsidiarity aims at determining the level of intervention that is most
relevant in the areas of competences shared between the EU and the Member States.
This may concern action at European, national or local levels. In all cases, the EU may
only intervene if it is able to act more effectively than Member States. The Protocol on the
application of the principles of subsidiarity and proportionality lays down three criteria
aimed at establishing the desirability of intervention at European level:
Does the action have transnational aspects that cannot be resolved by Member
States?
Would national action or an absence of action be contrary to the requirements of
the Treaty?
Does action at European level have clear advantages?
The principle of subsidiarity also aims at bringing the EU and its citizens closer by
guaranteeing that action is taken at local level where it proves to be necessary. However,
the principle of subsidiarity does not mean that action must always be taken at the level
that is closest to the citizen.
Complementarity with the principles of conferral and of proportionality
Article 5 of the Treaty on European Union defines the division of competences between
the Union and the Member States. It first refers to the principle of conferral according to
which the Union has only those competences that are conferred upon it by the Treaties.
Subsidiarity and proportionality are corollary principles of the principle of conferral. They
determine to what extent the EU can exercise the competences conferred upon it by the
Treaties. By virtue of the principle of proportionality, the means implemented by the EU in

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order to meet the objectives set by the Treaties cannot go beyond what is necessary.
The Union can therefore only act in a policy area if:
the action forms part of the competences conferred upon the EU by the Treaties
(principle of conferral);
in the context of competences shared with Member States, the European level is
most relevant in order to meet the objectives set by the Treaties (principle of
subsidiarity);
the content and form of the action does not exceed what is necessary to achieve
the objectives set by the Treaties (principle of proportionality).
MONITORING THE PRINCIPLE OF SUBSIDIARITY
Mechanisms to monitor the principle of subsidiarity were put in place by the Protocol on
the application of the principles of subsidiarity and proportionality. The Treaty of Lisbon
reformed the above Protocol in order to improve and reinforce monitoring.
The Protocol, introduced by the Treaty of Amsterdam, provided for compliance with
certain obligations during the actual drafting of legislation. Thus, before proposing
legislative acts, the Commission must prepare a Green Paper. Green Papers consist of
wide-ranging consultations. They enable the Commission to collect opinions from
national and local institutions and from civil society on the desirability of a legislative
proposal, in particular in respect of the principle of subsidiarity.
The Protocol also adds an obligation for the Commission to accompany draft legislative
acts with a statement demonstrating compliance with the principles of subsidiarity and
proportionality.
The Treaty of Lisbon innovates by associating national Parliaments closely with the
monitoring of the principle of subsidiarity. National Parliaments now exercise twofold
monitoring:
they have a right to object when legislation is drafted. They can thus dismiss a
legislative proposal before the Commission if they consider that the principle of
subsidiarity has not been observed (see file National Parliaments);
through their Member State, they may contest a legislative act before the Court of
Justice of the EU if they consider that the principle of subsidiarity has not been
observed.
The Treaty of Lisbon also associates the Committee of the Regions with the monitoring of
the principle of subsidiarity. In the same way as national Parliaments, the Committee may
also contest, before the Court of Justice of the EU, a legislative act that does not comply
with the principle of subsidiarity.

Last updated: 04.03.2010

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Division of competences within the European Union

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Division of competences within the European Union


INTRODUCTION
The Treaty of Lisbon clarifies the division of competences between the European Union
(EU) and Member States. It introduces a precise classification for the first time in the
founding Treaties, distinguishing between three main types of competence: exclusive
competences, shared competences and supporting competences.
This attempt at clarification does not result in any notable transfer of competence.
However, this reform is important and vital for the proper functioning of the EU. Several
conflicts of competence have emerged in the past between the EU and Member States.
Henceforth, the boundaries between the competences of each are clearly defined. In
addition, this transparency facilitates the application of the fundamental principles relating
to the control and exercise of these competences.
ABOLITION OF THE PILLARS OF THE EU
One of the most notable changes resulting from the Treaty of Lisbon concerns the
abolition of the three-pillar structure of the EU. These pillars were:
the European Community;
the Common Foreign and Security Policy (CFSP);
police and judicial cooperation in criminal matters.
Within this structure, several types of competence were superimposed. Acts adopted
under the framework of the first pillar were adopted in accordance with the EUs
legislative procedures. In contrast, the other two pillars were based on intergovernmental
cooperation between Member States.
The Treaty of Lisbon puts an end to this complicated structure. The European
Community disappears. It is replaced by the EU, which is endowed with legislative
procedures enabling it to exercise the competences conferred upon it to the full extent.
Moreover, the EU also acquires legal personality, which was previously reserved for the
old Community. It is therefore able henceforth to conclude treaties in the fields coming
within its area of competence.
THE THREE MAIN TYPES OF COMPETENCE
The Treaty on the Functioning of the EU (TFEU) distinguishes between three types of
competence and draws up a non-exhaustive list of the fields concerned in each case:
exclusive competences (Article 3 of the TFEU): the EU alone is able to legislate
and adopt binding acts in these fields. The Member States role is therefore limited
to applying these acts, unless the Union authorises them to adopt certain acts
themselves;

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shared competences (Article 4 of the TFEU): the EU and Member States are
authorised to adopt binding acts in these fields. However, Member States may
exercise their competence only in so far as the EU has not exercised, or has
decided not to exercise, its own competence;
supporting competences (Article 6 of the TFEU): the EU can only intervene to
support, coordinate or complement the action of Member States. Consequently, it
has no legislative power in these fields and may not interfere in the exercise of
these competences reserved for Member States.
SPECIAL COMPETENCES
The EU has special competences in certain fields:
the coordination of economic and employment policies (Article 5 of the TFEU):
the EU is responsible for ensuring the coordination of these policies. It is required to
define the broad direction and guidelines to be followed by Member States;
the CFSP (Article 24 of the Treaty on EU): the EU has competence in all fields
connected with the CFSP. It defines and implements this policy via, among others,
the President of the European Council and the High Representative of the Union for
Foreign Affairs and Security Policy, whose roles and status have been recognised
by the Treaty of Lisbon. However, the EU may not adopt legislative acts in this field.
In addition, the Court of Justice of the EU does not have competence to give
judgment in this area;
the flexibility clause (Article 352 of the TFEU): this clause enables the EU to act
beyond the power of action conferred upon it by the Treaties if the objective
pursued so requires. However, this clause is framed by a strict procedure and by
certain restrictions in terms of its application.
THE EXERCISE OF COMPETENCES
The exercise of Union competences is subject to three fundamental principles which
appear in Article 5 of the Treaty on EU. The definition of EU competences greatly
facilitates the proper application of these principles:
the principle of conferral: the Union has only the competences conferred upon it by
the Treaties;
the principle of proportionality: the exercise of EU competences may not exceed
what is necessary to achieve the objectives of the Treaties;
the principle of subsidiarity: for shared competences, the EU may intervene only if it
is capable of acting more effectively than the Member States;
TRANSFER OF COMPETENCES
The current division of competences between the EU and Member States is not set in
stone. However, the reduction or extension of EU competences is a delicate matter which
requires the consent of all Member States and necessitates a revision of the Treaties.

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JUDGMENT OF 14. 12. 2004 - CASE C-210/03

JUDGMENT OF THE COURT (Grand Chamber)


14 December 2004 *

In Case C-210/03,

REFERENCE for a preliminary ruling under Article 234 EC from the High Court of
Justice of England and Wales, Queen's Bench Division (Administrative Court), made
by decision of 17 April 2003, received at the Court on 15 May 2003, in the
proceedings

The Queen, on the application of:

Swedish Match AB,

Swedish Match UK Ltd

Secretary of State for Health,


* Language of the case: English.

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SWEDISH MATCH

THE COURT (Grand Chamber),

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans and K. Lenaerts,


Presidents of Chambers, C. Gulmann, J.-P. Puissochet, N. Colneric, S. von Bahr and
J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,


Registrar: H. von Holstein, Deputy Registrar, and subsequently M.-F. Contet,

Principal Administrator,

having regard to the written procedure and further to the hearing on 8 June 2004,

after considering the observations submitted on behalf of:


Swedish Match AB and Swedish Match UK Ltd, by G. Barling QC and M.
Lester, Barrister, instructed by S. Kon, D. Roy and S. Turnbull, Solicitors,

the United Kingdom Government, by C. Jackson, acting as Agent, and N. Paines


QC and T. Ward, Barrister,
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JUDGMENT OF 14. 12. 2004 CASE C-210/03

the French Government, by G. de Bergues and R. Loosli-Surrans, acting as


Agents,

the Irish Government, by D.J. O'Hagan, acting as Agent,

the Finnish Government, by T. Pynn, acting as Agent,

the Swedish Government, by A. Kruse, acting as Agent,

the European Parliament, by J.L. Rufas Quintana and M. Moore, acting as


Agents,

the Council of the European Union, by E. Karlsson and J.-P. Hix, acting as
Agents,

the Commission of the European Communities, by I. Martinez del Peral and


N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 September
2004,
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SWEDISH MATCH

gives the following

Judgment

This reference for a preliminary ruling concerns the validity of Article 8 of Directive
2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the
approximation of the laws, regulations and administrative provisions of the Member
States concerning the manufacture, presentation and sale of tobacco products (OJ
2001 L 194, p. 26), the interpretation of Articles 28 EC to 30 EC, and the
compatibility with those provisions and with the general principles of Community
law of national legislation prohibiting the placing on the market of tobacco products
for oral use.

The reference was made in the course of proceedings between Swedish Match AB
and Swedish Match UK Ltd (hereinafter referred to together as 'Swedish Match') and
the Secretary of State for Health concerning the prohibition of the marketing in the
United Kingdom of tobacco products for oral use.

Legal background

Community legislation

Article 8a of Council Directive 89/622/EEC of 13 November 1989 on the


approximation of the laws, regulations and administrative provisions of the Member
States concerning the labelling of tobacco products (OJ 1989 L 359, p. 1), as
amended by Council Directive 92/41/EEC of 15 May 1992 (OJ 1992 L 158, p. 30),
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JUDGMENT OF 14. 12. 2004 CASE C-210/03

('Directive 89/622') provides that the Member States are to prohibit the placing on
the market of tobacco for oral use, defined in Article 2(4) of that directive as 'all
products for oral use, except those intended to be smoked or chewed, made wholly
or partly of tobacco, in powder or particulate form or in any combination of these
forms particularly those presented in sachet portions or porous sachets or in a
form resembling a food product'.

The 11th recital in the preamble to Directive 92/41 states that 'it has been proved
that smokeless tobacco products are a major risk factor as regards cancer and ...
they should therefore carry a specific warning of that risk'. According to the 12th
recital in that preamble, 'scientific experts are of the opinion that the addiction
caused by tobacco consumption constitutes a danger meriting a specific warning on
every tobacco product'.

According to the 13th recital in the preamble to Directive 92/41:

'... new tobacco products for oral use which have appeared on the market in certain
Member States are particularly attractive to young people and ... the Member States
most exposed to this problem have already placed total bans on these new tobacco
products or intend so to do'.

The 14th recital in that preamble states:

',.. regarding such products, there are differences between the laws, regulations and
administrative provisions of the Member States and ... these products therefore
need to be made subject to common rules'.
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SWEDISH MATCH

According to the 15th recital in the preamble:

'... there is a real risk that the new products for oral use will be used above all by
young people, thus leading to nicotine addiction, unless restrictive measures are
taken in time'.

According to the 16th recital in the preamble:

'...in accordance with the conclusions of the studies conducted by the International
Agency for Research on Cancer, tobacco for oral use contains particularly large
quantities of carcinogenic substances; ... these new products cause cancer of the
mouth in particular'.

According to the 17th recital in the preamble to that directive:

'... the sales bans on such tobacco already adopted by three Member States have a
direct impact on the establishment and operation of the internal market; ... it is
therefore necessary to approximate Member States' laws, regulations and
administrative provisions in this area, taking as a base a high level of health
protection; ... the only appropriate measure is a total ban; ... however, such a ban
should not affect traditional tobacco products for oral use, which will remain subject
to the provisions of Directive 89/622/EEC, as amended by this Directive, applicable
to smokeless tobacco products'.
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JUDGMENT OF 14. 12. 2004 CASE C-210/03

10 Article 151(1) of the Act concerning the conditions of accession of the Republic of
Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to
the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ
1995 L 1, p. 1, 'the Act of Accession') provides:

'The Acts listed in Annex XV to this Act shall apply in respect of the new Member
States under the conditions laid down in that Annex.'

1 1 Chapter X, 'Miscellaneous', of Annex XV establishing the list provided for in Article


151 of the Act of Accession, provides:

'(a) The prohibition in Article 8a of Directive 89/622/EEC, as amended ...,


concerning the placing on the market of the product defined in Article 2(4) of
[the] Directive ... shall not apply [in the Kingdom of Sweden ...], with the
exception of the prohibition to place this product on the market in a form
resembling a food product.

(b) [The Kingdom of Sweden] shall take all measures necessary to ensure that the
product referred to in paragraph (a) is not placed on the market in the Member
States for which Directives 89/622/EEC and 92/41/EEC are fully applicable.

...'
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SWEDISH MATCH

12

Directive 2001/37 was adopted on the basis of Articles 95 EC and 133 EC and
recasts Directive 89/622 and Council Directive 90/239/EEC of 17 May 1990 on the
approximation of the laws, regulations and administrative provisions of the Member
States concerning the maximum tar yield of cigarettes (OJ 1990 L 137, p. 36).

13

According to the 28th recital in the preamble to Directive 2001/37:

'Directive 89/622/EEC prohibited the sale in the Member States of certain types of
tobacco for oral use. Article 151 of the Act of Accession ... grants the Kingdom of
Sweden a derogation from the provisions of that Directive in this regard.'

14

Article 2 of Directive 2001/37, headed 'Definitions', provides:

'For the purposes of this Directive:

1.

"tobacco products" means products for the purposes of smoking, sniffing,


sucking or chewing, inasmuch as they are, even partly, made of tobacco,
whether genetically modified or not;

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JUDGMENT OF 14. 12. 2004 - CASE C-210/03

4.

"tobacco for oral use" means all products for oral use, except those intended to
be smoked or chewed, made wholly or partly of tobacco, in powder or in
particulate form or in any combination of those forms, particularly those
presented in sachet portions or porous sachets, or in a form resembling a food
product;

...'

15 According to Article 5(4) of that directive:

'Tobacco products for oral use, where their marketing is permitted under Article 8,
and smokeless tobacco products shall carry the following warning: "This tobacco
product can damage your health and is addictive".

...'

16 Article 8 of the directive, 'Tobacco for oral use', provides:

'Member States shall prohibit the placing on the market of tobacco for oral use,
without prejudice to Article 151 of the Act of Accession ...'
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SWEDISH MATCH

17 Under Article 13(1) of the directive:

'Member States may not, for considerations relating to the limitation of the tar,
nicotine or carbon monoxide yields of cigarettes, to health warnings and other
indications or to other requirements of this Directive, prohibit or restrict the import,
sale or consumption of tobacco products which comply with this Directive, with the
exception of measures taken for the purposes of verifying the data provided under
Article 4.'

18 Article 15 of the directive provides inter alia that Directive 89/622 is repealed and
that references to it are to be construed as references to Directive 2001/37.

National legislation

19 In the United Kingdom, the prohibition provided for in Article 8a of Directive


89/622 was transposed into domestic law by the Tobacco for Oral Use (Safety)
Regulations 1992 ('the 1992 Regulations').

The main proceedings and the questions referred for a preliminary ruling

20 Swedish Match wished to market in the United Kingdom 'snus', which is finely
ground or cut tobacco sold loose or in small sachet portions and intended to be
consumed by placing between the gum and the lip.
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JUDGMENT OF 14. 12. 2004 CASE C-210/03

21 Swedish Match wrote to the United Kingdom Department of Health on 18 March


2002, setting out the reasons why it considered that the prohibition of the placing on
the market of tobacco products for oral use laid down by the 1992 Regulations was
unlawful. In its reply of 24 April 2002, that department stated that it considered the
prohibition to be lawful. Swedish Match brought proceedings for judicial review on
8 May 2002, submitting that the prohibition infringed various provisions of
Community law. The High Court of Justice of England and Wales, Queen's Bench
Division (Administrative Court), decided to stay the proceedings and refer the
following questions to the Court for a preliminary ruling:

'1. Are Articles 28 EC to 30 EC, applied compatibly with the general principles of
proportionality, non-discrimination and fundamental rights (in particular the
right to property), to be interpreted as precluding national legislation which
prohibits any person from supplying, offering or agreeing to supply, exposing
for supply or possessing for supply any product made wholly or partly of
tobacco which is either in powder or particulate form or any combination of
those forms or is presented in a form resembling a food product and is intended
for oral use other than smoking or chewing?

2. Is Article 8 of Directive 2001/37/EC invalid in whole or in part by reason of:

(a) infringement of the principle of non-discrimination;

(b) infringement of Article 28 EC and/or 29 EC;

(c) infringement of the principle of proportionality;


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SWEDISH MATCH

(d) the inadequacy of Article 95 EC and/or Article 133 EC as a legal basis;

(e) infringement of Article 95(3) EC;

(f ) misuse of powers;

(g) infringement of Article 253 EC and/or the duty to give reasons;

(h) infringement of the fundamental right to property?

3.

In circumstances where:
(a) a national measure implementing Article 8a of Directive 89/622/EEC was
adopted in 1992;

(b) the said national measure was adopted pursuant to powers in domestic law
which do not depend on the existence of an obligation to implement the
directive;
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JUDGMENT OF 14. 12. 2004 CASE C-210/03

(c) Directive 89/622/EEC (as subsequently amended by the Act of Accession ...)
is repealed and replaced by Directive 2001/37/EC, Article 8 of which reenacts Article 8a of Directive 89/622/EEC; and

(d) Article 8 of Directive 2001/37/EC is invalid by reason of the principles


referred to in questions 2(a), 2(c) or 2(h),

are those principles to be interpreted as also prohibiting the national measure in


question?'

The applications for leave to submit observations in reply to the Opinion of the
Advocate General and, in the alternative, for reopening of the oral procedure

22 By act lodged at the Court Registry on 4 October 2004, Swedish Match requested
the Court:

to grant it leave to submit written observations following the Opinion of the


Advocate General;

in the alternative, to order the oral procedure to be reopened, pursuant to


Article 61 of the Rules of Procedure.
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SWEDISH MATCH

23

Swedish Match wishes to comment on the Advocate General's suggestions relating


to the possibility of maintaining the effects of Directive 2001/37 in the event that the
Court declares it invalid.

24

O n this point, it must be recalled that the Statute of the Court of Justice and its
Rules of Procedure make no provision for the parties to submit observations in
response to the Advocate Generals Opinion (see the order in Case C-17/98 Emesa
Sugar [2000] ECR I-665, paragraph 2). The application for leave to submit written
observations in reply to the Advocate General s Opinion is therefore dismissed.

25

The Court may also, of its own motion, on a proposal from the Advocate General, or
at the request of the parties, order the reopening of the oral procedure, in
accordance with Article 61 of the Rules of Procedure, if it considers that it lacks
sufficient information or that the case should be decided on the basis of an argument
which has not been debated between the parties (see Case C-309/99 Wouters and
Others [2002] ECR I-1577, paragraph 42, and Case C-470/00 P Parliament v Ripa di
Meana and Others [2004] ECR I-4167, paragraph 33). In the present case, however,
the Court, after hearing the Advocate General, considers that it has all the
information necessary for it to answer the questions referred for a preliminary
ruling. T h e application for the oral procedure to be reopened must therefore be
dismissed.

The questions referred for a preliminary ruling

Question 2

26

By its second question, which should be examined first, the national court asks
whether Article 8 of Directive 2001/37 is invalid in whole or in part by reason of
infringement of the EC Treaty or of general principles of Community law, or by
reason of misuse of powers.
I - 11913

JUDGMENT OF 14. 12. 2004 - CASE C-210/03

The choice of Articles 95 EC and 133 EC as legal bases

27

The question is aimed at determining whether Article 95 EC constitutes an


appropriate legal basis for Article 8 of Directive 2001/37, and if so whether recourse
to Article 133 EC as a second legal basis for that provision is necessary or possible in
this case.

28

Article 95(1) EC provides that the Council is to adopt the measures for the
approximation of the provisions laid down by law, regulation or administrative
action in Member States which have as their object the establishment and
functioning of the internal market.

29

In this respect, it should be recalled that, while a mere finding of disparities between
national rules is not sufficient to justify having recourse to Article 95 EC (see, to that
effect, Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419,
paragraph 84), it is otherwise where there are differences between the laws,
regulations or administrative provisions of the Member States which are such as to
obstruct the fundamental freedoms and thus have a direct effect on the functioning
of the internal market (see, to that effect, Germany v Parliament and Council,
paragraph 95, and Case C-491/01 British American Tobacco (Investments) and
Imperial Tobacco [2002] ECR I-11453, paragraph 60).

30

It also follows from the Court's case-law that, while recourse to Article 95 EC as a
legal basis is possible if the aim is to prevent future obstacles to trade resulting from
the heterogeneous development of national laws, the emergence of such obstacles
must be likely and the measure in question must be designed to prevent them (see,
to that effect, Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 35,
I - 11914

SWEDISH MATCH

Germany v Parliament and Council, paragraph 86, Case C-377/98 Netherlands v


Parliament and Council [2001] ECR I-7079, paragraph 15, and British American
Tobacco (Investments) and Imperial Tobacco, paragraph 61).

31

The Court has also held that, where the conditions for recourse to Article 95 EC as a
legal basis are fulfilled, the Community legislature cannot be prevented from relying
on that legal basis on the ground that public health protection is a decisive factor in
the choices to be made {British American Tobacco (Investments) and Imperial
Tobacco, paragraph 62).

32

It should also be noted that the first subparagraph of Article 152(1) EC provides that
a high level of protection of human health is to be ensured in the definition and
implementation of all Community policies and activities, and that Article 95(3) EC
expressly requires that, in achieving harmonisation, a high level of protection of
human health should be guaranteed (British American Tobacco (Investments) and
Imperial Tobacco, paragraph 62).

33

It follows from the foregoing that, where there are obstacles to trade or it is likely
that such obstacles will emerge in future because the Member States have taken or
are about to take divergent measures with respect to a product or a class of products
such as to ensure different levels of protection and thereby prevent the product or
products concerned from moving freely within the Community, Article 95 EC
authorises the Community legislature to intervene by adopting appropriate
measures, in compliance with Article 95(3) EC and with the legal principles
mentioned in the Treaty or identified in the case-law, in particular the principle of
proportionality.
I - 11915

JUDGMENT OF 14. 12. 2004 CASE C-210/03

34 Depending on the circumstances, those appropriate measures may consist in


requiring all the Member States to authorise the marketing of the product or
products concerned, subjecting such an obligation of authorisation to certain
conditions, or even provisionally or definitively prohibiting the marketing of a
product or products (see, in the context of Council Directive 92/59/EEC of 29 June
1992 on general product safety (OJ 1992 L 228, p. 24), Case C-359/92 Germany v
Council [1994] ECR I-3681, paragraphs 4 and 33).

35

It is in the light of those principles that the Court must ascertain whether the
conditions for recourse to Article 95 EC as legal basis were satisfied in the case of
Article 8 of Directive 2001/37.

36

It must be pointed out, to begin with, that Article 8 does no more than reproduce
the provisions of Article 8a of Directive 89/622 under which the Member States are
to prohibit the placing on the market of tobacco for oral use. That tobacco is defined
in Directive 2001/37, and in Directive 89/622, as 'all products for oral use, except
those intended to be smoked or chewed, made wholly or partly of tobacco, in
powder or in particulate form or in any combination of those forms, particularly
those presented in sachet portions or porous sachets, or in a form resembling a food
product'.

37

It is common ground that for those products, as indicated in the 14th recital in the
preamble to Directive 92/41, there were differences, at the time of adoption of that
directive, between the laws, regulations and administrative provisions of the
Member States. Two of them had already prohibited the marketing of such products
and a third had adopted provisions which, while not yet in force, had the same
object. Those provisions were intended, according to their authors, to stop the
expansion of consumption of products harmful to health which were new to the
markets of the Member States and were thought to be especially attractive to young
people.
I - 11916

SWEDISH MATCH

38

As the market in tobacco products is one in which trade between Member States
represents a relatively large part (see British American Tobacco (Investments) and
Imperial Tobacco, paragraph 64), those prohibitions of marketing contributed to a
heterogeneous development of that market and were therefore such as to constitute
obstacles to the free movement of goods.

39

Having regard also to the public's growing awareness of the dangers to health of the
consumption of tobacco products, it was likely that obstacles to the free movement
of those products would arise by reason of the adoption by the Member States of
new rules reflecting that development and intended more effectively to discourage
consumption of those products (British American Tobacco (Investments) and
Imperial Tobacco, paragraph 67).

40

Article 8 of Directive 2001/37 was adopted in a context which, from the point of
view of obstacles to the free movement of goods existing in the market for tobacco
products as a result of the heterogeneous development of conditions of marketing of
tobacco products for oral use in the various Member States, was no different from
that which existed when Article 8a of Directive 89/622 was adopted. It should be
added that the Act of Accession cannot have any bearing on the assessment of that
context. That Act not only excluded the Kingdom of Sweden from the scope of
Article 8a, it also required that Member State to take all necessary measures to
ensure that tobacco products for oral use were not placed on the market in the other
Member States.

4 1 Action by the Community legislature on the basis of Article 95 EC was therefore


justified with respect to tobacco products for oral use.
I - 11917

JUDGMENT OF 14. 12. 2004 CASE C-210/03

42

It follows from the foregoing that the prohibition in Article 8 of Directive 2001/37
could be adopted o n the basis of Article 95 EC. It will have to b e examined below
whether the adoption of that measure complied with Article 95(3) EC and the legal
principles referred t o in the national court's questions.

43

As regards the question whether recourse to Article 133 EC as a second legal basis of
Article 8 was necessary or possible in the present case, it suffices t o recall that in
paragraph 97 of British American Tobacco (Investments) and Imperial Tobacco the
Court considered that Article 95 EC constituted the only appropriate legal basis for
Directive 2001/37 and that it was incorrect for it t o cite Article 133 EC as well.

44

However, that incorrect reference to Article 133 EC as a second legal basis for that
directive does n o t of itself mea n that t h e directive is invalid (British
American
Tobacco (Investments) and Imperial Tobacco, paragraph 98). Such a n error in t h e
citations of a C o m m u n i t y act is n o more than a purely formal defect, unless it gave
rise to irregularity in the procedure applicable to the adoption of that act (see, to that
effect, Case 165/87 Commission v Council [1988] ECR 5545, paragraph 19, and
Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council
[2004] ECR I-7789, paragraph 44). The Court went on to hold, in paragraph 111 of
British American Tobacco (Investments) and Imperial Tobacco, that recourse to the
twofold legal basis of Articles 95 EC and 133 EC did not give rise to irregularity in
the procedure for adopting the directive and that the directive was not invalid on
that account.

45

Accordingly, Article 8 of Directive 2001/37 is not invalid o n account of lack of a n


appropriate legal basis.
I - 11918

SWEDISH MATCH

Article 95(3) EC and the principle of proportionality

46

Article 95(3) EC provides that both the Commission and also the Parliament and the
Council are to take as a base a high level of protection of h u m a n health, taking
account in particular of any new development based on scientific facts.

47

It should also be borne in mind that the principle of proportionality, which is one of
the general principles of Communit y law, requires that measures implemented
through Community provisions are appropriate for attaining the objective pursued
and must not go beyond what is necessary to achieve it (see, inter alia, Case 137/85
Maizena [1987] ECR 4587, paragraph 15; Case C-339/92 ADM lmhlen [1993]
ECR I-6473, paragraph 15; a n d Case C-210/00 Kserei Champignon
Hofmeister
[2002] ECR I-6453, paragraph 59).

48

W i th regard to judicial review of the conditions referred to in t h e previous


paragraph, the Community legislature must be allowed a broad discretion in an area
such as that concerned in the present case, which involves political, economic and
social choices on its part, a n d in which it is called o n to undertake complex
assessments. Only if a measure adopted in this field is manifestly inappropriate in
relation to the objective which the competent institutions are seeking to pursue can
the lawfulness of such a measure be affected (see, to that effect, Case C-84/94 United
Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany v
Parliament and Council [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96
National Farmers' Union and Others [1998] ECR I-2211, paragraph 61; and British
American Tobacco (Investments) and Imperial Tobacco, paragraph 123).
I - 11919

JUDGMENT OF 14. 12. 2004 - CASE C-210/03

49 With regard to Article 8a inserted in Directive 89/622 by Directive 92/41, it is


apparent from the preamble to the latter directive that the prohibition of the
marketing of tobacco products for oral use was the only measure that appeared
appropriate to cope with the real danger that those new products would be used by
young people, thus leading to nicotine addiction, with those products causing cancer
of the mouth in particular.

50 Swedish Match essentially submits that, having regard to the state of the scientific
information available to the Community legislature in 2001, when Article 8 of
Directive 2001/37 was adopted, on which it moreover relied in amending the rules
governing the warning referred to in Article 5(4) of that directive, maintenance of
the prohibition of marketing tobacco products for oral use was disproportionate in
relation to the objective pursued and did not take account of the development of
that scientific information.

51 The answer to that argument must be that, while some experts could from 1999 call
into question the assertion that, as the 16th recital in the preamble to Directive
92/41 puts it, 'these new products cause cancer of the mouth in particular', all
controversy on that point was not eliminated at the time of adoption of Directive
2001/37. Moreover, while part of the scientific community accepted that tobacco
products for oral use could be used as substitute products for cigarettes, another
part challenged the correctness of such a position. From that situation it must be
inferred that the scientific information which could have been available to the
Community legislature in 2001 did not allow the conclusion that consumption of
the products in question presented no danger to human health.

52 Moreover, like all other tobacco products, those for oral use contain nicotine, which
causes addiction and whose toxicity is not disputed.
I - 11920

SWEDISH MATCH

53

Now, first, it had not been shown at the time of adoption of Directive 2001/37 that
the harmful effects of those products were lesser in that regard than those of other
tobacco products. Second, it had been shown that they presented serious risks to
health, which the Community legislature had to take into account.

54

In those circumstances, it cannot be maintained that, contrary to the provisions of


Article 95(3) EC, the prohibition which follows from Article 8 of Directive 2001/37
was laid down without account being taken of the development of scientific
information.

55

Moreover, nothing that has been submitted to the Court allows the view to be taken
that tobacco products for oral use were not products new to the market of the
Member States as it existed at the time of adoption of Directive 92/41.

56

To satisfy its obligation to take as a base a high level of protection in health matters,
in accordance with Article 95(3) EC, the Community legislature was thus able,
without exceeding the limits of its discretion in the matter, to consider that a
prohibition of the marketing of tobacco products for oral use was necessary, and in
particular that there was no alternative measure which allowed that objective to be
achieved as effectively.

57

As the Advocate General observes in points 116 to 119 of his Opinion, no other
measures aimed at imposing technical standards on manufacturers in order to
reduce the harmful effects of the product, or at regulating the labelling of packagings
of the product and its conditions of sale, in particular to minors, would have the
same preventive effect in terms of the protection of health, inasmuch as they would
let a product which is in any event harmful gain a place in the market.
I - 11921

JUDGMENT OF 14. 12. 2004 CASE C-210/03

58 It follows from the above considerations that, with respect both to the objective of
ensuring a high level of protection of human health given to the Community
legislature by Article 95(3) EC and to its obligation to comply with the principle of
proportionality, the contested prohibition cannot be regarded as manifestly
inappropriate.

Article 28 EC and/or Article 29 EC

59

It is settled case-law that the prohibition of quantitative restrictions and measures


having equivalent effect laid down by Articles 28 EC and 29 EC applies not only to
national measures but also to measures adopted by the Community institutions (see
in particular, to that effect, Case 15/83 Denkavit Nederland [1984] ECR 2171,
paragraph 15; Case C-51/93 Meyhui [1994] ECR I-3879, paragraph 11; and Case
C-114/96 Kieffer and Thill [1997] ECR I-3629, paragraph 27).

60

Nevertheless, as Article 30 EC provides, the provisions of Articles 28 EC and 29 EC


do not preclude prohibitions or restrictions on imports, exports or goods in transit
justified inter alia on grounds of protection of the health and life of humans.

61 While the prohibition of marketing tobacco products for oral use under Article 8 of
Directive 2001/37 constitutes one of the restrictions referred to in Articles 28 EC
and 29 EC, it is nevertheless justified, as indicated in paragraph 58 above, on
grounds of the protection of human health. It cannot therefore, in any event, be
regarded as having been adopted in breach of the provisions of Articles 28 EC and
29 EC.
I - 11922

SWEDISH MATCH

62

Moreover, the prohibition imposed on the Kingdom of Sweden on placing tobacco

products for oral use on the markets of the other Member States derives from the
provisions of point (b) of Chapter X of Annex XV to the Act of Accession, not those
of Directive 2001/37.

Article 253 EC

63

It must be borne in mind that, while the statement of reasons required by Article
253 EC must show clearly and unequivocally the reasoning of the Community
authority which adopted the contested measure, so as to enable the persons
concerned to ascertain the reasons for it and to enable the Court to exercise judicial
review, it is not required to go into every relevant point of fact and law (see, inter
alia, Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29).

64

Furthermore, the question whether a statement of reasons satisfies the requirements


must be assessed with reference not only to the wording of the measure but also to
its context and to the whole body of legal rules governing the matter in question. If
the contested measure clearly discloses the essential objective pursued by the
institution, it would be excessive to require a specific statement of reasons for each
of the technical choices made by the institution (see, in particular, Case C-100/99
Italy v Council and Commission [2001] ECR I-5217, paragraph 64, and, to that
effect, Spain and Finland v Parliament and Council, paragraph 79).

65

The recitals in the preamble to Directive 92/41 set out clearly the reasons why a
measure prohibiting the marketing of tobacco products for oral use was to be
introduced in Directive 89/622. In particular, after recalling that scientific experts
were of the opinion that all tobacco products entail dangers to health and that it had
been proved that smokeless tobacco products were a major risk factor as regards
cancer, the preamble further stated that new tobacco products for oral use appearing
on the market in certain Member States were particularly attractive to young people,
I - 11923

JUDGMENT OF 14. 12. 2004 CASE C-210/03

with the risk of their developing an addiction to nicotine if restrictive measures were
not taken in time. It was also observed that the Member States most exposed to that
problem had already placed total bans on those new products or intended to do so.

66

It should also be stated that t h e prohibition of marketing tobacco products for oral
use laid down in Article 8 of Directive 2001/37 is confined, in t h e context of t h e
recasting of earlier provisions which constitutes one of t h e objects of that directive,
to confirming the identical measure adopted in 1992. T h e different treatment
reserved in 1992 for those products as opposed to other smokeless tobacco products
was the result of circumstances relating to the novelty o n t h e internal market at t h e
time of t h e products affected by the prohibition, their attraction for young people,
and the existence of national prohibitive measures in certain M e m b e r States.

67

Those circumstances remained the same in 2001. Admittedly, it is common ground


that the marketing of tobacco products for oral use has a long tradition in Sweden
and that those products could not be regarded as new to the market corresponding
to the territory ofthat Member State on its accession in 1995. However, since Article
151 of the Act of Accession precisely excluded the Kingdom of Sweden from the
scope of the prohibition adopted in 1992, the territory ofthat State cannot be taken
into account for the determination of the market referred to in Article 8 of Directive
2001/37 or, consequently, for the assessment with respect to that market of the
novelty of the products whose marketing is prohibited there in accordance with that
article.

68

Since Directive 2001/37 specifies, in the 28th recital in its preamble, that Directive
89/622 prohibited the sale in the Member States of certain types of tobacco for oral
use and that Article 151 of the Act of Accession granted the Kingdom of Sweden a
I - 11924

SWEDISH MATCH

derogation from the provisions of the latter directive, it does not appear that the
confirmation of that prohibition in Article 8 of Directive 2001/37 required that
directive to specify other relevant points of fact and law in order to satisfy the
obligation to state reasons under Article 253 EC.

69

Accordingly, Article 8 of Directive 2001/37 complies with the obligation to state


reasons set out in Article 253 EC.

The principle of non-discrimination

70

It is settled case-law that the principle of equal treatment requires that comparable
situations must not be treated differently and that different situations must not be
treated in the same way unless such treatment is objectively justified (see, to that
effect, Case C-304/01 Spain v Commission [2004] ECR I-7655, paragraph 31).

71 Although tobacco products for oral use, as defined in Article 2 of Directive 2001/37,
are not fundamentally different in their composition or indeed their intended use
from tobacco products intended to be chewed, they were not in the same situation
as those products. The tobacco products for oral use which are the subject of the
prohibition laid down in Article 8a of Directive 89/622 and repeated in Article 8 of
Directive 2001/37 were new to the markets of the Member States referred to in that
measure. That particular situation thus authorised a difference in treatment, and it
cannot validly be argued that there was a breach of the principle of nondiscrimination.
I - 11925

JUDGMENT OF 14. 12. 2004 CASE C-210/03

The principle of freedom to pursue a trade or profession and the right to property

72

According to the case-law of the Court, t h e freedom to pursue a trade or profession,


like t h e right to property, is one of the general principles of Communit y law. Those
principles are no t absolute rights, however, but m u s t be considered in relation to
their social function. Consequently, restrictions may be imposed on the exercise of
the freedom to pursue a trade or profession, as on t h e exercise of the right to
property, provided that the restrictions in fact correspond to objectives of general
interest and do n o t constitute, in relation to the aim pursued, a disproportionate and
intolerable interference, impairing the very substance of the rights guaranteed (see,
inter alia, Case 265/87 Schrder [1989] ECR 2237, paragraph 15; Case C-280/93
Germany v Council [1994] ECR I-4973, paragraph 78; Case C-293/97 Standley and
Others [1999] ECR I-2603, paragraph 54; Joined Cases C-37/02 and C-38/02 Di
Lenardo and Dilexport [2004] ECR I-6911, paragraph 82, and Spain and Finland v
Parliament and Council, paragraph 52).

73

The prohibition on the marketing of tobacco products for oral use laid down in
Article 8 of Directive 2001/37 is indeed capable of restricting the freedom of
manufacturers of such products to pursue their trade or profession, assuming that
they have envisaged such marketing in the geographical region concerned by that
prohibition. However, the operators' right to property is not called into question by
the introduction of such a measure. No economic operator can claim a right to
property in a market share, even if he held it at a time before the introduction of a
measure affecting that market, since such a market share constitutes only a
momentary economic position exposed to the risks of changing circumstances (Case
C-280/93 Germany v Council, paragraph 79). Nor can an economic operator claim
an acquired right or even a legitimate expectation that an existing situation which is
capable of being altered by decisions taken by the Community institutions within
the limits of their discretionary power will be maintained (see Case 52/81 Faust v
Commission [1982] ECR 3745, paragraph 27).
I - 11926

SWEDISH MATCH

74

As stated above, Directive 2001/37 pursues an objective in the general interest by


ensuring a high level of protection of health in the context of the harmonisation of

the provisions applicable to the placing on the market of tobacco products. It does
not appear, as indicated in paragraph 58 above, that the prohibition laid down in
Article 8 of that directive is inappropriate to that objective. In those circumstances,
the obstacle to the freedom to pursue an economic activity constituted by a measure
of such a kind cannot be regarded, in relation to the aim pursued, as a
disproportionate interference with the exercise of that freedom or with the right
to property.

Alleged misuse of powers

75

As the Court has repeatedly held, a measure is vitiated by misuse of powers only if it
appears on the basis of objective, relevant and consistent evidence to have been
taken with the exclusive or main purpose of achieving an end other than that stated
or evading a procedure specifically prescribed by the Treaty for dealing with the
circumstances of the case (see Case C-331/88 Fedesa and Others [1990] ECR I-4023,
paragraph 24, and Case C-110/97 Netherlands v Council [2001] ECR I-8763,
paragraph 137).

76

With regard in particular to the express exclusion of any harmonisation of the laws
and regulations of the Member States designed to protect and improve human
health laid down in the first indent of Article 129(4) of the EC Treaty (now, after
amendment, the first subparagraph of Article 152(4) EC), the Court has held that
other articles of the Treaty may not be used as a legal basis in order to circumvent
that exclusion (Case C-376/98 Germany v Parliament and Council, paragraph 79).
The Court has, however, stated that, provided that the conditions for recourse to
Article 95(1) EC as a legal basis are fulfilled, the Community legislature cannot be
prevented from relying on that legal basis on the ground that the protection of
public health is a decisive factor in the choices to be made (Case C-376/98 Germany
v Parliament and Council, paragraph 88, and British American
Tobacco
(Investments) and Imperial Tobacco, paragraph 190).
I - 11927

JUDGMENT OF 14. 12. 2004 CASE C-210/03

77

First, t h e conditions for recourse t o Article 95 EC were fulfilled in t h e case of Article


8 of Directive 2001/37 and, second, it has n o t been shown that that provision was
adopted with t h e exclusive or m a i n purpose of achieving an objective other t h a n that
of eliminating t h e barriers to trade connected with t h e heterogeneous development
of national laws o n tobacco product s for oral use.

78

Accordingly, Article 8 of Directive 2001/37 is not invalid by reason of misuse of


powers.

The answer to Question 2 taken as a whole

79

The answer to Question 2, taken as a whole, must be that consideration of that


question has not disclosed any factor of such a kind as to affect the validity of Article
8 of Directive 2001/37.

Question 1

80 By its first question, the national court essentially asks whether Articles 28 EC and
29 EC must be interpreted as precluding national legislation such as that at issue in
the main proceedings.
I - 11928

SWEDISH MATCH

81 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 (see Case
C-37/92 Vanackerand Lesage [1993] ECR I-4947, paragraph 9, and Case C-324/99
DaimlerChrysler [2001] ECR I-9897, paragraph 32).

82

Since the marketing of tobacco products for oral use is a question that is regulated in
a harmonised manner at Community level, the national legislation at issue in the
main proceedings which, duly transposing the Community legislation, prohibits the
marketing of those products may thus be assessed with regard only to the provisions
of that Community legislation, not to those of Articles 28 EC and 29 EC.

83

In the light of the above considerations, the answer to Question 1 must be that,
where a national measure prohibits the marketing of tobacco products for oral use
in accordance with the provisions of Article 8 of Directive 2001/37, there is no need
to ascertain separately whether that national measure complies with Articles 28 EC
and 29 EC.

Question 3

84

By its third question, the national court essentially asks whether, in the event that
Article 8 of Directive 2001/37 is invalid, the principles of non-discrimination,
proportionality and the protection of the right to property should be interpreted as
precluding a national measure prohibiting tobacco products for oral use.
I - 11929

JUDGMENT OF 14. 12. 2004 - CASE C-210/03

85

There is no need to answer this question, since, as stated in paragraph 79 above,


consideration of Question 2 has not disclosed any factor of such a kind as to affect
the validity of Article 8 of Directive 2001/37.

Costs

86

Since these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for that
court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) rules as follows:

1. Consideration of the second question has not disclosed any factor of such a
kind as to affect the validity of Article 8 of Directive 2001/37/EC of the
European Parliament and of the Council of 5 June 2001 on the
approximation of the laws, regulations and administrative provisions of
the Member States concerning the manufacture, presentation and sale of
tobacco products.

2. Where a national measure prohibits the marketing of tobacco products for


oral use in accordance with the provisions of Article 8 of Directive 2001/37,
there is no need to ascertain separately whether that national measure
complies with Articles 28 EC and 29 EC.

Signatures.
I - 11930

CURIA - Documents

http://curia.europa.eu/juris/document/document_print.jsf?doc...

JUDGMENT OF THE COURT (Second Chamber)


28 October 2010 (*)

(Failure of a Member State to fulfil obligations Freedom to provide maritime transport


services Regulation (EEC) No 3577/92 Articles 1 and 4 Cabotage services within a
Member State Obligation to conclude public service contracts on a non-discriminatory
basis Conclusion of an exclusive contract, without a prior call for tenders, before the date
of accession of a Member State to the European Union)

In Case C508/08,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 20 November
2008,
European Commission, represented by J. Aquilina and K. Simonsson, acting as Agents,
with an address for service in Luxembourg,
applicant,
v
Republic of Malta, represented by S. Camilleri, L. Spiteri and A. Fenech, acting as Agents,
defendant,
THE COURT (Second Chamber),
composed of J.N. Cunha Rodrigues, President of the Chamber, A. Arabadjiev, U. Lhmus
(Rapporteur), A. Caoimh and P. Lindh, Judges,
Advocate General: E. Sharpston,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 11 May 2010,
after hearing the Opinion of the Advocate General at the sitting on 1 July 2010,
gives the following
Judgment
1

1 sur 5

By its application, the Commission of the European Communities has asked the Court to
declare that, by signing an exclusive public service contract with Gozo Channel Co. Ltd
(GCCL) on 16 April 2004, without having undertaken a prior call for tenders, the Republic
of Malta has failed to fulfil its obligations under Council Regulation (EEC) No 3577/92 of

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7 December 1992 applying the principle of freedom to provide services to maritime


transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7), in particular
Articles 1 and 4 thereof.
Legal context
Act of Accession
2

Article 2 of the Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of
Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the
Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which
the European Union is founded (OJ 2003 L 236, p. 33; the Act of Accession) provides:
From the date of accession, the provisions of the original Treaties and the acts adopted by
the institutions and the European Central Bank before accession shall be binding on the new
Member States and shall apply in those States under the conditions laid down in those
Treaties and in this Act.
Regulation No 3577/92

Article 1(1) of Regulation No 3577/92 provides:


As from 1 January 1993, freedom to provide maritime transport services within a Member
State (maritime cabotage) shall apply to Community shipowners who have their ships
registered in, and flying the flag of, a Member State, provided that these ships comply with
all conditions for carrying out cabotage in that Member State, including ships registered in
Euros, once that Register is approved by the Council.

Article 4(1) of that regulation states:


A Member State may conclude public service contracts with or impose public service
obligations as a condition for the provision of cabotage services, on shipping companies
participating in regular services to, from and between islands.
Whenever a Member State concludes public service contracts or imposes public service
obligations, it shall do so on a nondiscriminatory basis in respect of all Community
shipowners.
Background to the dispute and the pre-litigation procedure

2 sur 5

During the negotiations for the accession of the Republic of Malta to the European Union,
on 26 October 2001 the European Union adopted a common position (Conference on
accession to the European Union Malta doc. 20766/01 CONFM 80/01) in relation to the
chapter on transport policy. The common position stated: the EU notes that Malta intends to
conclude explicit public service obligation contracts both with Sea Malta Co. Ltd and [with
GCCL] of 5 years duration each by 30 June 2002 and that upon termination of these
contracts tendering procedures will apply in line with the relevant acquis.

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By letter of 7 March 2005, in response to a request for information to it from the


Commission, the Republic of Malta confirmed that the Maltese Government had on 16 April
2004 concluded two six-year exclusive public service obligation contracts with GCCL and
with Sea Malta Co. Ltd for the provision of maritime transport services between the islands
of Malta and Gozo.

The Commission therefore decided to initiate the procedure under Article 226 EC. By letter
of formal notice dated 10 April 2006, that institution stated that the contracts, which had
been concluded without a prior call for tenders, were not in compliance with Community
law since, first, they had not been concluded by means of a nondiscriminatory procedure
and, second, it had not been demonstrated that they were either necessary or proportionate.

On 12 June 2006, the Republic of Malta replied to that letter of formal notice.

Since it was not satisfied with that reply, the Commission issued a reasoned opinion on
15 December 2006, stating that, by signing an exclusive contract with GCCL on 16 April
2004 for the provision of the maritime transport service between the islands of Malta and
Gozo, without having undertaken a prior call for tenders, the Republic of Malta has failed to
fulfil its obligations under Regulation No 3577/92, in particular Articles 1 and 4 thereof. The
Commission called on the Republic of Malta to adopt, within two months of receiving the
reasoned opinion, the measures necessary to comply with it.

10

The Republic of Malta replied to the reasoned opinion by letter of 15 June 2008, in which it
informed the Commission that preparations had been commenced for the issuing of a call for
tenders for the provision of maritime transport services between the islands of Malta and
Gozo, which was to take place no later than October 2008.

11

In those circumstances, the Commission brought the present action.


The action

3 sur 5

12

In support of its action, the Commission submits that, first, it follows from the second
subparagraph of Article 4(1) of Regulation No 3577/92 that the conclusion of a public
service maritime cabotage contract must be preceded by a tendering procedure conducted on
a nondiscriminatory and open basis at Community level, whereas the contract concluded on
16 April 2004 between the Maltese Government and GCCL did not result from such a
procedure.

13

Second, it is apparent from Case C-205/99 Analir and Others [2001] ECR I-1271 that a
public service contract complies with the requirements of Regulation No 3577/92 only if a
real public service need can be demonstrated. However, with regard to the contract
concluded with GCCL, the Republic of Malta did not demonstrate sufficiently either that
there was such a need or that an exclusive contract was necessary and proportionate.

14

The Republic of Malta argues, as its principal plea in defence, that Regulation No 3577/92
was not applicable to that contract, since it was concluded before 1 May 2004, the date of
the Member States accession to the European Union.

15

In its reply, the Commission does not dispute that that regulation was not applicable to the

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Republic of Malta on the date on which the contract at issue was signed, that is to say, on 16
April 2004. However, it contends that it is precisely from 1 May 2004 that, as regards that
contract, the Member State was not in compliance with its obligations under the regulation.
At the hearing, the Commission further stated that that noncompliance consists in having
maintained the contract in force after the date of accession of the Republic of Malta to the
European Union.

4 sur 5

16

In that regard, it should be borne in mind that it is clear from Article 38(1)(c) of the Rules of
Procedure of the Court of Justice and from the case-law relating to that provision that an
application must state the subject-matter of the proceedings and a summary of the pleas in
law on which the application is based, and that that statement must be sufficiently clear and
precise to enable the defendant to prepare his defence and the Court to rule on the
application. It is therefore necessary for the essential points of law and of fact on which a
case is based to be indicated coherently and intelligibly in the application itself and for the
heads of claim to be set out unambiguously so that the Court does not rule ultra petita or
indeed fail to rule on an objection (see Case C412/04 Commission v Italy [2008] ECR
I619, paragraph 103, and Case C211/08 Commission v Spain [2010] ECR I0000,
paragraph 32 and case-law cited).

17

In the present case, it is quite clear both from the wording of the reasoned opinion and from
the form of order sought in the Commissions application that the failure of the Republic of
Malta to fulfil obligations arising under Regulation No 3577/92, alleged by the Commission,
consists in having signed the contract at issue on 16 April 2004.

18

It follows that the contention that the Republic of Malta was not in compliance with its
obligations under that regulation as from 1 May 2004 does not correspond to the form of
order sought in the application.

19

Consequently, after examining its merits, the Court cannot adjudicate on such a contention
without ruling ultra petita.

20

As regards the subject-matter of the infringement as set out in the Commissions


application, it must be observed that, pursuant to Article 2 of the Act of Accession,
Regulation No 3577/92 was applicable to the Republic of Malta, as the Commission
acknowledges, only as from 1 May 2004, the date of the accession of that State to the
European Union (see, by analogy, Case C-168/08 Hadadi [2009] ECR I6871, paragraph
26).

21

In those circumstances, as the Advocate General stated at point 57 of her Opinion, the
Commissions action could succeed only if Regulation No 3577/92 nevertheless required the
Republic of Malta to comply with certain obligations before that date. In the context of the
present case, such obligations would require, in particular, that the Member States refrain
from concluding a public service contract in a manner inconsistent with Articles 1 and 4 of
Regulation No 3577/92 during the period before which that regulation was applicable to
them.

22

It is, however, clear that the Commission in no way based the pleas put forward in support
of its action on the possible existence of such obligations. On the contrary, as observed at
paragraph 15 above, it stated, both in its reply and at the hearing, that it was from 1 May
2004, the date on which Regulation No 3577/92 entered into force in respect of the Republic
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of Malta because of its accession to the European Union, that that Member State was not, in
the Commissions view, in compliance with its obligations under that regulation.
23

In the light of the foregoing, and without there being any need to rule on the alternative
pleas of the Republic of Malta in its defence, the Commissions action must be dismissed.
Costs

24

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay
the costs if they have been applied for in the successful partys pleadings. Since the Republic
of Malta applied for costs and the Commission has been unsuccessful, the Commission must
be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1.

Dismisses the action;

2.

Orders the European Commission to pay the costs.

[Signatures]

* Language of the case: Maltese.

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JUDGMENT OF 5. 10. 2000 CASE C-376/98

JUDGMENT OF THE COURT


5 October 2000 *

In Case C-376/98,

Federal Republic of Germany, represented by C.-D. Quassowski, Regierungsdirektor in the Federal Ministry of Finance, acting as Agent, assisted by
J. Sedemund, Rechtsanwalt, Berlin, Federal Ministry of Finance, Referat EC2
Graurheindorfer Strae 108, D-53117 Bonn,

applicant,

European Parliament, represented by C. Pennera, Head of Division in the Legal


Service, and N. Lorenz, of the same service, acting as Agents, with an address for
service in Luxembourg at the General Secretariat of the European Parliament,
Kirchberg,
and
Council of the European Union, represented by R. Gosalbo Bono, Director in the
Legal Service, A. Feeney and S. Marquardt, of the Legal Service, acting as Agents,
* Language of the case: German.

I - 8498

GERMANY V PARLIAMENT AND COUNCIL

with an address for service in Luxembourg at the office of A. Morbilli, General


Counsel, Directorate for Legal Affairs of the European Investment Bank, 100
Boulevard Konrad Adenauer,

defendants,

supported by
French Republic, initially represented by J.-F. Dobelle, Assistant Director in the
Legal Affairs Directorate of the Ministry of Foreign Affairs, and R. LoosliSurrans, Charg de Mission in the same Directorate, and then by K. RispalBellanger, Head of Subdirectorate in the same directorate, and R. Loosli-Surrans,
acting as Agents, with an address for service in Luxembourg at the French
Embassy, 8 b Boulevard Joseph II,
by

Republic of Finland, represented by H. Rotkirch and T. Pynn, Valtionasiamiehet acting as Agents, with an address for service in Luxembourg at the Finnish
Embassy, 2 Rue Heinrich Heine,
by
United Kingdom of Great Britain and Northern Ireland, represented by
M. Ewing, of the Treasury Solicitor's Department, acting as Agent, and N. Paines
QC, with an address for service in Luxembourg at the British Embassy, 14
Boulevard Roosevelt,
and by
Commission of the European Communities, represented by I. Martnez del Peral
and U. Wlker, of its Legal Service, acting as Agents, with an address for service
in Luxembourg at the office of C. Gmez de la Cruz, also of its Legal Service,
Wagner Centre, Kirchberg,

interveners,
I - 8499

JUDGMENT OF 5. 10. 2000 CASE C-376/98

APPLICATION for the annulment of Directive 98/43/EC of the European


Parliament and of the Council of 6 July 1998 on the approximation of the laws,
regulations and administrative provisions of the Member States relating to the
advertising and sponsorship of tobacco products (OJ 1998 L 213, p. 9),

THE COURT,
composed of: G.C. Rodrguez Iglesias, President, J.C. Moitinho de Almeida
(Rapporteur), D.A.O. Edward, L. Sevn and R. Schintgen (Presidents of
Chambers), P.J.G. Kapteyn, C. Gulmann, A. La Pergola, J.-P. Puissochet,
P. Jann, H. Ragnemalm M. Wathelet and F. Macken, Judges,

Advocate General: N. Fennelly,


Registrar: H. von Holstein, Deputy Registrar, and L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 12 April 2000, at
which the Federal Republic of Germany was represented by C.-D. Quassowski,
assisted by J. Sedemund, the Parliament by C. Pennera and N. Lorenz, the
Council by R. Gosalbo Bono, A. Feeney and S. Marquardt, the French Republic
by R. Loosli-Surrans, the Republic of Finland by T. Pynn, the United Kingdom
of Great Britain and Northern Ireland by G. Amodeo, of the Treasury Solicitor's
Department, acting as Agent, and Professor R. Cranston QC, MP, Her Majesty's
Solicitor General for England and Wales, and N. Paines, and the Commission by
I. Martnez del Peral and U. Wlker,
I - 8500

GERMANY V PARLIAMENT AND COUNCIL

after hearing the Opinion of the Advocate General at the sitting on 15 June 2000,

gives the following

Judgment

By application lodged at the Registry of the Court on 19 October 1998, the


Federal Republic of Germany brought an action under Article 173 of the EC
Treaty (now, after amendment, Article 230 EC) for the annulment of Directive
98/43/EC of the European Parliament and of the Council of 6 July 1998 on the
approximation of the laws, regulations and administrative provisions of the
Member States relating to the advertising and sponsorship of tobacco products
(OJ 1992 L 213, p. 9, hereinafter 'the Directive').

By orders of the President of the Court of 30 April 1999, the French Republic, the
Republic of Finland, the United Kingdom of Great Britain and Northern Ireland
and the Commission of the European Communities were granted leave to
intervene in support of the European Parliament and the Council of the European
Union.

The Directive was adopted on the basis of Article 57(2) of the EC Treaty (now,
after amendment, Article 47(2) EC), Article 66 of the EC Treaty (now Article 55
EC) and Article 100a of the EC Treaty (now, after amendment, Article 95 EC).
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Article 2 of the Directive provides:

'For the purposes of this Directive, the following definitions shall apply:

1. "tobacco products": all products intended to be smoked, sniffed, sucked or


chewed inasmuch as they are made, even partly, of tobacco;

2.

"advertising": any form of commercial communication with the aim or the


direct or indirect effect of promoting a tobacco product, including advertising
which, while not specifically mentioning the tobacco product, tries to
circumvent the advertising ban by using brand names, trade-marks, emblems
or other distinctive features of tobacco products;

3.

"sponsorship": any public or private contribution to an event or activity with


the aim or the direct or indirect effect of promoting a tobacco product;

4.

"tobacco sales outlet": any place where tobacco products are offered for
sale.'

According to Article 3 of the Directive:

'1. Without prejudice to Directive 89/552/EEC, all forms of advertising and


sponsorship shall be banned in the Community.
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GERMANY V PARLIAMENT AND COUNCIL

2. Paragraph 1 shall not prevent the Member States from allowing a brand name
already used in good faith both for tobacco products and for other goods or
services traded or offered by a given undertaking or by different undertakings
prior to 30 July 1998 to be used for the advertising of those other goods or
services.

However, this brand name may not be used except in a manner clearly distinct
from that used for the tobacco product, without any further distinguishing mark
already used for a tobacco product.

3. (a) Member States shall ensure that no tobacco product bears the brand
name, trade-mark, emblem or other distinctive feature of any other
product or service, unless the tobacco product has already been traded
under that brand name, trade-mark, emblem or other distinctive feature
on the date referred to in Article 6(1);

(b) the ban provided for in paragraph 1 may not be circumvented, in respect
of any product or service placed or offered on the market as from the date
laid down in Article 6(1), by the use of brand names, trade-marks,
emblems and other distinguishing features already used for a tobacco
product.

To this end, the brand name, trade-mark, emblem and any other
distinguishing feature of the product or service must be presented in a
manner clearly distinct from that used for the tobacco product.

4. Any free distribution having the purpose or the direct or indirect effect of
promoting a tobacco product shall be banned.
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

5. This Directive shall not apply to:

communications intended exclusively for professionals in the tobacco trade,

the presentation of tobacco products offered for sale and the indication of
their prices at tobacco sales outlets,

advertising aimed at purchasers in establishments specialising in the sale of


tobacco products and on their shop-fronts or, in the case of establishments
selling a variety of articles or services, at locations reserved for the sale of
tobacco products, and at sales outlets which, in Greece, are subject to a
special system under which licences are granted for social reasons ("perptera"),

the sale of publications containing advertising for tobacco products which


are published and printed in third countries, where those publications are not
principally intended for the Community market.'

Pursuant to Article 4 of the Directive:

'Member States shall ensure that adequate and effective means exist of ensuring
and monitoring the implementation of national measures adopted pursuant to
this Directive. These means may include provisions whereby persons or
organisations with a legitimate interest under national law in the withdrawal
of advertising which is incompatible with this Directive may take legal
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GERMANY V PARLIAMENT AND COUNCIL

proceedings against such advertising or bring such advertising to the attention of


an administrative body competent to give a ruling on complaints or to institute
the appropriate legal proceedings.'

Article 5 of the Directive provides:

'This Directive shall not preclude Member States from laying down, in
accordance with the Treaty, such stricter requirements concerning the advertising
or sponsorship of tobacco products as they deem necessary to guarantee the
health protection of individuals.'

Pursuant to Article 6 of the Directive:

'1. Member States shall bring into force the laws, regulations, and administrative
provisions necessary to comply with this Directive not later than 30 July 2001.
They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this
Directive or shall be accompanied by such reference on the occasion of their
official publication. The methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the text of the main
provisions of domestic law which they adopt in the field covered by this
Directive.
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

3. Member States may defer the implementation of Article 3(1) for:

one year in respect of the press,

two years in respect of sponsorship.


In exceptional cases and for duly justified reasons, Member States may continue
to authorise the existing sponsorship of events or activities organised at world
level for a further period of three years ending not later than 1 October 2006,
provided that:

the sums devoted to such sponsorship decrease over the transitional period,

voluntary-restraint measures are introduced in order to reduce the visibility


of advertising at the events or activities concerned.'

In support of its application, the Federal Republic of Germany puts forward


seven pleas in law alleging, respectively, that Article 100a of the Treaty is not an
appropriate legal basis for the Directive, infringement of Article 57(2) and
Article 66 of the Treaty, breach of the principles of proportionality and
subsidiarity, breach of fundamental rights, infringement of Articles 30 and 36
of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) and
infringement of Article 190 of the EC Treaty (now Article 253 EC).
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GERMANY V PARLIAMENT AND COUNCIL

10 The applicant and the defendants state that their arguments regarding Article 100a also apply to the interpretation of Articles 57(2) and 66 of the Treaty.

1 1 It is therefore appropriate to consider the pleas alleging that Articles 100a, 57(2)
and 66 of the Treaty do not constitute the proper legal basis for the Directive
together.

The pleas alleging that the legal basis is incorrect

Arguments of the parties

12 The applicant, relying both on the characteristics of the tobacco products


advertising market and on its analysis of Article 100a, considers that Article 100a
of the Treaty is not the proper legal basis for the Directive.

1 3 As regards, first, the characteristics of the market, the applicant submits that
tobacco products advertising is essentially an activity whose effects do not extend
beyond the borders of individual Member States.

1 4 Whilst tobacco products advertising is often conceived by the manufacturer, the


specific presentation of advertising media to consumers is the result of a strategy
based on the particular features of each market. The decision regarding the
specific form of the advertising, musical background, colours and other features
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

of advertising products is taken at national level so that they conform with the
cultural idiosyncracies of each Member State.

15 Trade in so-called 'static' advertising media (such as posters, cinema advertising


and advertising for the hotel and catering sector, for example, via parasols and
ash-trays) between Member States is practically non-existent and has to date not
been subject to any restrictions. For tax reasons, advertising involving free
distribution is also limited to national markets.

1 6 The applicant submits that the press is the only significant form of 'non-static'
advertising media in economic terms. Admittedly, advertising magazines and
daily papers serve as media for tobacco products, but intra-Community trade in
such products is very limited. Considerably less than 5% of magazines are
exported to other Member States and daily newspapers are used to a much lesser
extent than magazines for carrying tobacco advertising. In Germany, in 1997, the
share of total advertising revenue of daily papers accounted for by tobacco
products advertising was 0.04%.

17 The limited extent of cross-frontier trade in newspapers accounts for the fact that
they are not subject to restrictions by Member States which prohibit their
national press from accepting advertisements for tobacco products. Belgian and
Irish law expressly authorise imported press carrying such advertising and actions
before French courts seeking to prohibit such imports have been unsuccessful.

18 As regards 'diversification' products covered by Article 3(2) of the Directive, the


applicant claims that, as a result of its imprecise nature, different interpretations
of that provision may give rise to new restrictions on trade. In any event, the
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GERMANY V PARLIAMENT AND COUNCIL

Directive does not contain any free-trade clause preventing Member States which
do not take advantage of the opportunity offered by that provision from objecting
to the marketing of products from other Member States which have availed
themselves of that opportunity.

19 The applicant claims that the development of centralised advertising strategies


and the intellectual work inherent in advertising services provided by advertising
agencies do not fall within the scope of the Directive. Article 2(2) of the Directive
defines advertising merely as the actual use of advertising facilities directed
towards consumers.

20

The applicant also submits that the relationship between the sponsor and the
organiser largely operates at national level since both are normally established in
the same Member State. Moreover, even where that is not the case, there is no
barrier to sponsorship under national legislation since arrangements for making
advertising space available at event venues are made locally. Nor is television
broadcasting of sponsored events subject to any restrictions.

21 As regards distortion of competition as a result of differences between national


laws, the applicant claims that, in view of the first recital in the preamble, the
Directive does not purport to eliminate such distortion in the tobacco sector.

22 As regards competition between manufacturers of advertising products, the


applicant argues that they operate only to a negligible extent beyond national
borders and there is no competitive relationship between them because tobacco
advertising strategies are primarily nationally orientated. As far as the press is
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

concerned, imported products do not compete with local products and in any
event they do not achieve market shares which may be regarded as significant in
the importing Member State.

23

With respect, second, to its analysis of Article 100a of the Treaty, the applicant
submits, first, that Article 100a grants the Community legislature competence to
harmonise national legislation to the extent to which harmonisation is necessary
in order to promote the internal market. A mere reference to that article in the
preamble to the measure adopted is not sufficient, otherwise judicial review of the
selection of Article 100a as a legal basis would be rendered impossible. The
measure must actually contribute to the improvement of the internal market.

24

That, the applicant submits, is not the case here. Given that the sole form of
advertising allowed, namely advertising at the point of sale, accounts for only 2%
of the tobacco industry's advertising expenditure, the Directive constitutes, in
practice, a total prohibition of tobacco advertising. Consequently, instead of
promoting trade in advertising media for tobacco products and freedom to
provide services in that area, the Directive almost entirely negates those freedoms.
Moreover, according to the applicant, the Directive creates new obstacles to trade
which did not exist previously. Thus, the prohibition of tobacco advertising
makes it almost impossible to import and market new products and will result in
stagnation of inter-State trade.

25

As to whether the harmonisation pursued by the Directive was necessary to


remove distortions of competition, the applicant expands upon the above
considerations concerning the tobacco products advertising market by asserting
that the Directive distorts competition in markets outside the tobacco industry in
ways that did not exist beforehand.
I - 8510

GERMANY V PARLIAMENT AND COUNCIL

26

T h a t is also the case with diversification products referred t o in Article 3(2) of the
Directive, which imposes such restrictive conditions that undertakings manufacturing those products m u s t either close their establishments or bear heavy

additional costs, with the possible loss of substantial market shares to


competitors.

27

Admittedly, as is clear from t h e case-law of the Court, the h a r m o n i s a t i on of laws


m a y legitimately aim t o prevent the emergence of future obstacles to trade
resulting from heterogeneous development of national laws. However, t h e
Directive has the sole result of introducing n e w p e r m a n e n t obstacles t o trade,
w h e t h e r immediately or in the future.

28

Other directives based on Article 100a of the Treaty which prohibit certain
activities, in the applicant's contention, differ from the Directive. Thus, the
prohibition of misleading advertising is intended to promote cross-border trade
by guaranteeing fair advertising across the Community; similarly, the prohibition
on using product components, manufacturing processes or forms of marketing
which are harmful to health is intended to create an internal market for the
products concerned by allowing them to be manufactured, marketed or
consumed without risk to health.

29

The applicant also contends that Article 100a should be available as a legal basis
only in cases where obstacles to the exercise of fundamental freedoms and
distortion of competition are considerable. The case-law of the Court on
Articles 30 and 36 of the Treaty to the effect that those provisions prohibit even
minimal obstacles to trade cannot be transposed to an area where it is necessary
to define the respective powers of the Community and the Member States. If the
Community legislature were permitted to harmonise national legislation even
where there was no appreciable effect on the internal market, it could adopt
directives in any area whatsoever and judicial review of the legislation's
compliance with Article 100a would become superfluous.
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

30 The applicant submits that its interpretation of Article 100a of the Treaty also
finds support in the case-law of the Court (see Case 91/79 Commission v Italy
[1980] ECR 1099, paragraph 8, and Case C-300/89 Commission v Council
[1991] ECR I-2867 the Titanium Dioxide judgment paragraph 23).

31 The applicant considers that its views, summarised in paragraphs 13 to 22 of this


judgment, clearly demonstrate that there are no appreciable obstacles to trade in
tobacco advertising media or to the exercise by advertising agencies of their
freedom to provide services and that there is no appreciable distortion of
competition between such agencies.

32

Finally, the applicant submits that recourse to Article 100a is not possible where
the 'centre of gravity' of a measure is focused not on promoting the internal
market but on protecting public health.

33

According to settled case-law, the Community may not rely on Article 100a when
the measure to be adopted only incidentally harmonises market conditions within
the Community (Case C-70/88 Parliament v Council [1991] ECR I-4529,
paragraph 17; Case C-155/91 Commission v Council [1993] ECR I-939,
paragraph 19; Case C-187/93 Parliament v Council [1994] ECR I-2857,
paragraph 25; and Case C-84/94 United Kingdom v Council [1996] ECR
I-5755, paragraph 45).

34

However, both the legislative history of the Directive and its content and purpose
show that the 'centre of gravity' of the measure is public health protection.

35

The applicant observes that the Directive differs from the one at issue in the
Titanium Dioxide case, cited above. In that case, implementation of environI - 8512

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mental policy a n d attainment of the internal market were pursued at the same
level a n d each of those C o m m u n i t y objectives h a d its o w n legal basis, namely
Article 130r of the E C Treaty (now, after a m e n d m e n t , Article 174 EC) a n d
Article 100a, of the Treaty respectively, enabling national laws t o be harmonised.
However, that is not the case here: public health policy is the 'centre of gravity' of
the Directive yet harmonising measures in that field are expressly prohibited by
Article 129(4) first indent, of the E C Treaty (now, after a m e n d m e n t , Article 152(4), first paragraph, EC).

36 The Parliament, the Council and the parties intervening in support, relying, first,
on the existence of a n internal market in the tobacco products advertising sector
and, second, o n an analysis of Article 100a, consider that t h e Directive w a s
validly adopted on the basis of Article 100a of the Treaty.

37 The Parliament, the Council and the Commission contend that there is an internal
market in the tobacco products advertising sector in which advertising campaigns
are often centralised a n d designed by agencies established in the Community.
Although the chosen advertising strategies and the advertising themes are put into
effect at national level, t h e choice of themes a n d the selection of symbols, logos
and other elements are decided upon and offered at cross-border level a n d reach
consumers in several M e m b e r States.

38

As regards the hotel a n d catering sector, t h e Council contends that, even if the
effect of such advertising is limited to the local population, identical advertising
media c a n be used in several M e m b e r States since the language used is often
English.

39

T h e Parliament a n d the Council d r a w attention t o t h e cross-border aspects of


advertising via free distribution, which forms part of a uniformly defined
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

advertising concept put into effect for a particular brand. The Parliament adds
that the prohibition of promotional gifts is justified by the need to prevent
circumvention of the rules.

40 The free movement of magazines, in particular those which airlines make


available to passengers on intra-Community flights and newspapers published in
one Member State and distributed in other Member States, which contain
tobacco advertising, is also likely to be hindered as a result of the existing
legislative differences between Member States.

41 As far as diversification products are concerned, the Parliament and the Council
contend that, contrary to the applicant's assertion, Article 3(2) of the Directive is
a precise provision which must be construed as meaning that a Member State may
not prevent the marketing of a product lawfully marketed in another Member
State which has availed itself of the exemption provided by that provision.

42

The Parliament and the Council contend that sponsorship also involves crossborder elements. They observe that the impact of the advertising media used in
sponsored events, such as cars, drivers' clothing and hoardings set up along the
circuit, is not confined to the local population. In any event, according to the
Council, if the sponsor and the sponsored undertaking are established in different
Member States, that is sufficient to establish a cross-border context.

43

The Parliament, the Council and the Commission emphasise, finally, that in view
of the disparate national legislation, advertising agencies cannot devise and offer
uniform publishing concepts at Community level.
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GERMANY V PARLIAMENT AND COUNCIL

44 In their view, the Directive, which, as a result of the approximation of laws,


creates a uniform framework for the advertising of tobacco products in the
internal market, could validly be adopted on the basis of Article 100a of the
Treaty.

45

In that connection, the Parliament, the Council and the Commission contend that
the power conferred on the Council by that provision is not necessarily concerned
with the liberalisation of trade but rather with market regulation. That explains
why it has been possible for directives containing certain prohibitions to be
adopted on the basis of Article 100a.

46 Thus, Council Directive 92/41/EEC of 15 M a y 1992 amending Directive 89/622/


EEC on the approximation of the laws, regulations and administrative provisions
of the Member States concerning the labelling of tobacco products (OJ 1992
L 158, p . 30) prohibited the marketing of certain types of tobacco for oral use
and Council Directive 91/339/EEC of 18 June 1991 amending for the 11th time
Directive 76/769/EEC on the approximation of the laws, regulations a nd
administrative provisions of the Member States relating to restrictions on the
marketing and use of certain dangerous substances and preparations (OJ 1991
L 186, p . 64) imposed a total prohibition on use of the listed substances.

47

In the advertising field, directives such as Directive 97/55/EC of the European


Parliament a nd of the Council of 6 October 1997 amending Directive 84/450/
EEC concerning misleading advertising so as to include comparative advertising
(OJ 1997 L 290, p . 18) a nd Council Directive 92/28/EEC of 31 March 1992 on
the advertising of medicinal products for human use (OJ 1992 L 113, p. 13) were
likewise not designed to liberalise trade. Th e latter directive, in particular,
imposed wide-ranging prohibitions on advertising, especially that of medicinal
products for which a marketing authorisation complying with Community law
had not been issued (Article 2(1)) and medicinal products which can be supplied
only on prescription (first indent of Article 3(1)).
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48

The Parliament, the Council and the Commission also mention other directives,
which impose partial prohibitions, such as that of television advertising of
tobacco products (Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television broadcasting
activities (OJ 1989 L 298, p. 23)) and measures displaying an indirect link to
fundamental freedoms, such as those concerning summer time (Seventh Directive
94/21/EC of the European Parliament and of the Council of 30 May 1994 on
summer-time arrangements (OJ 1994 L 164, p. 1)) or access to the international
telephone network in the Community (Council Decision 92/264/EEC of 11 May
1992 on the introduction of a standard international telephone access code in the
Community (OJ 1992 L 137, p. 21)).

49

Recourse to Article 100a of the Treaty is not limited to cases where legislative
differences actually give rise to obstacles to the exercise of fundamental freedoms
or distortion of competition. As the Court held in Case C-350/92 Spain v Council
[1995] ECR 1-1985, paragraph 33, it is sufficient if the disparities between the
laws of the Member States are liable to hinder the free movement of goods.
Recourse to Article 100a is even possible in order to prevent the heterogeneous
development of national laws leading to further disparities (ibid., paragraph 35).

50

As regards the applicant's argument that recourse to Article 100a as a legal basis
should be possible only in cases where differences in legislation give rise to
appreciable obstacles to trade or appreciable distortion of competition, the
Council contends that that distinction, which is based on competition law, cannot
be used within the sphere of Article 100a. Objective and universal criteria must
be used to define the scope of powers.

51 The Commission also contends that, in this case, there is real distortion of
competition. Because of existing differences in legislation, the potential profit of
advertising agencies differs according to the place where they are established or
the market in which they carry on business. Where newspapers or periodicals
I-8516

GERMANY V PARLIAMENT AND COUNCIL

from other Member States are simply tolerated, despite restrictive legislation
affecting the press in the Member State in question, there is distortion of
competition in that State.

52

As regards sponsorship, such differences have an impact on the choice of venue


for events sponsored by tobacco manufacturers, which has significant economic
repercussions in the case of sports events such as Formula 1 racing.

53

Finally, producers a n d sellers of t o b a c c o products d o n o t enjoy the same


conditions of competition w h i c h have a n influence on their m a r k e t position. In
M e m b e r States with restrictive legislation, economic operators can only maintain
or improve their m a r k et position by price competition.

54

In response to the applicant's argument that public health protection is the 'centre
of gravity' of the Directive, the Parliament, the Council and the Commission state
that it is clear from the case-law of the Court that the essential factor to be relied
on in assessing the choice of the legal basis for a measure is the text of the
measure in question. It is clear from the wording of the third and fourth recitals in
the preamble to the Directive and the place occupied by them that the protection
of human health is one of its objectives, pursued in the context of the provisions
of Article 100a(3) and (4) of the Treaty, but that it is not the principal one.

55 Similarly, the second recital and Article 5 of the Directive, by recognising the
right of Member States to adopt provisions more stringent than those laid down
in the Directive to ensure public health protection, also clearly demonstrate that
the concern for the protection of human health is an incidental and subordinate
one.
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56

The Commission observes, in that connection, that the emphasis on public health
protection in the Directive can be explained by the fact that it constituted the
main, or indeed even the sole, objective of the national measures being
harmonised, but, in the context of that harmonisation, it became a secondary
objective.

57

The Parliament, the Council and the Commission state, finally, that the fact that
the Directive imposes a broad prohibition on tobacco advertising derives from the
obligation imposed by Article 100a(3) of the Treaty to take as a base a high level
of human health protection and from the need to prevent circumvention of the
prohibition.

58

The United Kingdom Government challenges the applicant's assertion that the
Directive is incorrectly based on Article 100a of the Treaty because its principal
objective is not the elimination of obstacles to trade in advertising media and
associated services but the protection of human health.

59

According to the case-law of the Court, the choice of the legal basis for a measure
must be guided by objective factors which are amenable to judicial review,
including, in particular, the aim and content of the measure.

60 Objectively, the Directive pursues objectives which are inseparably linked with
the protection of human health and others linked with elimination of disparities
in conditions of competition and liberalisation of trade. The applicant's approach
of seeking to determine which of those objectives is most important is not only
contrary to the objective test propounded by the Court but also unworkable.
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GERMANY V PARLIAMENT AND COUNCIL

61 The United Kingdom Government submits that Article 100a of the Treaty confers
power on the Council and the Parliament to adopt measures concerned with the
establishment and functioning of the internal market and considers that in this
case the measure concerned falls into that category.

62

For a measure to be validly based on Article 100a, it is not necessary to


demonstrate that it has the effect of increasing the volume of cross-border trade.
It is sufficient for the measure to eliminate disparities in conditions of
competition.

63

T h e Directive is intended t o remove distortion of competition n o t only in the


advertising m a r k e t but also in the tobacco products m a r k e t , by harmonising the
conditions under which manufacturers m a y p r o m o t e their products. It also
harmonises the conditions under which cultural a n d sports events c a n be
sponsored by the tobacco industry.

64

Professional sports teams are undertakings competing with each other, and the
conditions of such competition would be affected if teams in different Member
States could not receive the same subsidies from the tobacco industry, which is
particularly willing to sponsor sports events in order to counteract the association
of those products with bad health.

65

The Court has held that a measure may be adopted with a view to anticipating
the adoption of disparate national rules involving serious obstacles to trade. The
present situation of tolerating publications which contain tobacco advertising
may change in view of the evolution of national regulations, which are becoming
more strict. There is, therefore, a risk of increased obstacles to trade which the
Directive is intended to eliminate.
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

66

With regard to the applicant's argument that recourse to Article 100a of the
Treaty should be possible only where there are appreciable restrictions on the
exercise of fundamental freedoms or appreciable distortion of competition, the
United Kingdom Government observes that no specific criterion is capable of
being used to draw such a distinction.

67

It emphasises that its suggested interpretation of Article 100a is confirmed by the


case-law of the Court according to which a directive which confines itself to
prohibiting certain activities with a view to eliminating distortion of competition
may be adopted on the basis of that article (Titanium Dioxide, cited above).

68

The French Government considers that the Directive was validly adopted on the
basis of Article 100a of the Treaty. It bases that view on arguments drawn from
legislative precedents relating to harmonisation in the area of public health, the
case-law of the Court on Article 129 of the Treaty and, finally, the legal basis
chosen for new harmonising measures now in the process of being adopted.

69

As legislative precedents, it refers to the directives on pharmaceutical products,


from Council Directive 65/65/EEC of 26 January 1965 on the approximation of
provisions laid down by law, regulation or administrative action relating to
proprietary medicinal products (OJ, English Special Edition 1965-66, p. 20) to
Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the
environment of genetically modified organisms (OJ 1990 L 117, p. 15) and
Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws
of the Member States relating to cosmetic products (OJ 1976 L 262, p. 169). In
those directives, the aims of public health protection co-exist with the objective of
free movement of products and the removal of distortion of competition, and the
validity of the provisions thereof which harmonise national laws on public health
has not been challenged.
I - 8520

GERMANY V PARLIAMENT AND COUNCIL

70 As regards the case-law of the Court on Article 129 of the Treaty, the French
Government cites Case C-180/96 United Kingdom v Commission [1998] ECR
I-2265 and Case C-269/97 Commission v Council [2000] ECR I-2257, in which
the Court made it clear that human health protection requirements are a
constituent part of other Community policies, in particular the internal market
policy.

71 Finally, the legal basis of the proposal for a directive on the approximation of
provisions laid down by law, regulation or administrative action relating to the
manufacture, sale and presentation of tobacco products is Article 100a of the
Treaty. Moreover, negotiations have been started under the auspices of the World
Health Organisation with a view inter alia to concluding a protocol on the
advertising of tobacco products. The legal basis of the authority vested in the
Commission to participate in those negotiations is Article 228 of the EC Treaty
(now, after amendment, Article 300 EC).

72

The Finnish Government states that, in view of the obstacles to trade and
distortion of competition caused by disparate national legislation, the Directive
was validly adopted on the basis of Article 100a the Treaty.

73

It draws attention to the cross-border features of the advertising market and of


sponsorship of tobacco products referred to by the Parliament, the Council and
the Commission, and adds that the internationalisation of that market is
intensified by electronic communications, in particular advertising on the
Internet. With the benefit of media such as television, the advertising of tobacco
products penetrates Member States where such advertising is prohibited. Thus, in
a Member State like Finland, where direct advertising of tobacco products has
been prohibited since 1976, studies show that in 1996, for example, sports
programmes broadcast on the three national television channels over a period of
one month included four hours of advertising for such products.
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

74

The Finnish Government also refers to distortion of competition in the tobacco


products and sponsorship sectors. Sponsorship, which is not available to small
undertakings, creates inequality which is incompatible with the common market.

75

As regards the importance of health protection in the Directive, the arguments


put forward by the Finnish Government are the same as those expounded by the
Parliament, the Council and the Commission, which are summarised in
paragraphs 54 to 57 of this judgment.

The Court's analysis

The choice of Articles 100a, 57(2) and 66 of the Treaty as a legal basis and
judicial review thereof

76

The Directive is concerned with the approximation of laws, regulations and


administrative provisions of the Member States relating to the advertising and
sponsorship of tobacco products. The national measures affected are to a large
extent inspired by public health policy objectives.

77

The first indent of Article 129(4) of the Treaty excludes any harmonisation of
laws and regulations of the Member States designed to protect and improve
human health.

78

But that provision does not mean that harmonising measures adopted on the basis
of other provisions of the Treaty cannot have any impact on the protection of
I - 8522

GERMANY V PARLIAMENT AND COUNCIL

human health. Indeed, the third paragraph of Article 129(1) provides that health
requirements are to form a constituent part of the Community's other policies.

79 Other articles of the Treaty may not, however, be used as a legal basis in order to
circumvent the express exclusion of harmonisation laid down in Article 129(4) of
the Treaty.

so In this case, the approximation of national laws on the advertising and


sponsorship of tobacco products provided for by the Directive was based on
Articles 100a, 57(2) and 66 of the Treaty.

81 Article 100a(1) of the Treaty empowers the Council, acting in accordance with
the procedure referred to in Article 189b (now, after amendment, Article 251 EC)
and after consulting the Economic and Social Committee, to adopt measures for
the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and
functioning of the internal market.

82 Under Article 3(c) of the EC Treaty (now, after amendment, Article 3(1 )(c) EC),
the internal market is characterised by the abolition, as between Member States,
of all obstacles to the free movement of goods, persons, services and capital.
Article 7a of the EC Treaty (now, after amendment, Article 14 EC), which
provides for the measures to be taken with a view to establishing the internal
market, states in paragraph 2 that that market is to comprise an area without
internal frontiers in which the free movement of goods, persons, services and
capital is ensured in accordance with the provisions of the Treaty.
I - 8523

JUDGMENT OF 5. 10. 2000 CASE C-376/98

83

Those provisions, read together, make it clear that the measures referred to in
Article 100a(1) of the Treaty are intended to improve the conditions for the
establishment and functioning of the internal market. To construe that article as
meaning that it vests in the Community legislature a general power to regulate the
internal market would not only be contrary to the express wording of the
provisions cited above but would also be incompatible with the principle
embodied in Article 3b of the EC Treaty (now Article 5 EC) that the powers of
the Community are limited to those specifically conferred on it.

84

Moreover, a measure adopted on the basis of Article 100a of the Treaty must
genuinely have as its object the improvement of the conditions for the
establishment and functioning of the internal market. If a mere finding of
disparities between national rules and of the abstract risk of obstacles to the
exercise of fundamental freedoms or of distortions of competition liable to result
therefrom were sufficient to justify the choice of Article 100a as a legal basis,
judicial review of compliance with the the proper legal basis might be rendered
nugatory. The Court would then be prevented from discharging the function
entrusted to it by Article 164 of the EC Treaty (now Article 220 EC) of ensuring
that the law is observed in the interpretation and application of the Treaty.

85

So, in considering whether Article 100a was the proper legal basis, the Court
must verify whether the measure whose validity is at issue in fact pursues the
objectives stated by the Community legislature (see, in particular, Spain v
Council, cited above, paragraphs 25 to 41, and Case C-233/94 Germany v
Parliament and Council [1997] ECR I-2405, paragraphs 10 to 21).

86

It is true, as the Court observed in paragraph 35 of its judgment in Spain v


Council, cited above, that recourse to Article 100a as a legal basis is possible if
the aim is to prevent the emergence of future obstacles to trade resulting from
multifarious development of national laws. However, the emergence of such
obstacles must be likely and the measure in question must be designed to prevent
them.
I - 8524

GERMANY V PARLIAMENT AND COUNCIL

87 The foregoing considerations apply to interpretation of Article 57(2) of the


Treaty, read in conjunction with Article 66 thereof, which expressly refers to
measures intended to make it easier for persons to take up and pursue activities
by way of services. Those provisions are also intended to confer on the
Community legislature specific power to adopt measures intended to improve the
functioning of the internal market.

88 Furthermore, provided that the conditions for recourse to Articles 100a, 57(2)
and 66 as a legal basis are fulfilled, the Community legislature cannot be
prevented from relying on that legal basis on the ground that public health
protection is a decisive factor in the choices to be made. On the contrary, the third
paragraph of Article 129(1) provides that health requirements are to form a
constituent part of the Community's other policies and Article 100a(3) expressly
requires that, in the process of harmonisation, a high level of human health
protection is to be ensured.

89

It is therefore necessary to verify whether, in the light of the foregoing, it was


permissible for the Directive to be adopted on the basis of Articles 100a, 57(2)
and 66 of the Treaty.

The Directive

90

In the first recital in the preamble to the Directive, the Community legislature
notes that differences exist between national laws on the advertising and
sponsorship of tobacco products and observes that, as a result of such advertising
and sponsorship transcending the borders of the Member States, the differences in
question are likely to give rise to barriers to the movement of the products which
serve as the media for such activities and the exercise of freedom to provide
services in that area, as well as to distortions of competition, thereby impeding
the functioning of the internal market.
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

91 According to the second recital, it is necessary to eliminate such barriers, and, to


that end, approximate the rules relating to the advertising and sponsorship of
tobacco products, whilst leaving Member States the possibility of introducing,
under certain conditions, such requirements as they consider necessary in order to
guarantee protection of the health of individuals.

92

Article 3(1) of the Directive prohibits all forms of advertising and sponsorship of
tobacco products and Article 3(4) prohibits any free distribution having the
purpose or the effect of promoting such products. However, its scope does not
extend to communications between professionals in the tobacco trade, advertising in sales outlets or in publications published and printed in third countries
which are not principally intended for the Community market (Article 3(5)).

93

The Directive also prohibits the use of the same names both for tobacco products
and for other products and services as from 30 July 1998, except for products
and services marketed before that date under a name also used for a tobacco
product, whose use is authorised under certain conditions (Article 3(2)). With
effect from 30 July 2001, tobacco products must not bear the brand name, trademark, emblem or other distinctive feature of any other product or service, unless
the tobacco product has already been traded under that brand name, trade-mark,
emblem or other distinctive feature before that date (Article 3(3)(a)).

94

Pursuant to Article 5, the Directive is not to preclude Member States from laying
down, in accordance with the Treaty, such stricter requirements concerning the
advertising or sponsorship of tobacco products as they deem necessary to
guarantee the health protection of individuals.
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GERMANY V PARLIAMENT AND COUNCIL

95 It therefore necessary to verify whether the Directive actually contributes to


eliminating obstacles to the free movement of goods a n d to the freedom to
provide services, and to removing distortions of competition.

Elimination of obstacles to the free movement of goods and the freedom to


provide services

96 It is clear that, as a result of disparities between national laws on the advertising


of tobacco products, obstacles to the free movement of goods or the freedom to
provide services exist or may well arise.

97 In the case, for example, of periodicals, magazines and newspapers which contain
advertising for tobacco products, it is true, as the applicant has demonstrated,
that n o obstacle exists at present to their importation into Member States which
prohibit such advertising. However, in view of the trend in national legislation
towards ever greater restrictions on advertising of tobacco products, reflecting
the belief that such advertising gives rise to an appreciable increase in tobacco
consumption, it is probable that obstacles to the free movement of press products
will arise in the future.

98

In principle, therefore, a Directive prohibiting the advertising of tobacco products


in periodicals, magazines and newspapers could be adopted on the basis of
Article 100a of the Treaty with a view to ensuring the free movement of press
products, on the lines of Directive 89/552, Article 13 of which prohibits
I - 8527

JUDGMENT OF 5. 10. 2000 CASE C-376/98

television advertising of tobacco products in order to promote the free broadcasting of television programmes.

99

However, for numerous types of advertising of tobacco products, the prohibition


under Article 3(1) of the Directive cannot be justified by the need to eliminate
obstacles to the free movement of advertising media or the freedom to provide
services in the field of advertising. That applies, in particular, to the prohibition of
advertising on posters, parasols, ashtrays and other articles used in hotels,
restaurants and cafs, and the prohibition of advertising spots in cinemas,
prohibitions which in no way help to facilitate trade in the products concerned.

100 Admittedly, a measure adopted on the basis of Articles 100a, 57(2) and 66 of the
Treaty may incorporate provisions which do not contribute to the elimination of
obstacles to exercise of the fundamental freedoms provided that they are
necessary to ensure that certain prohibitions imposed in pursuit of that purpose
are not circumvented. It is, however, quite clear that the prohibitions mentioned
in the previous paragraph do not fall into that category.

101 Moreover, the Directive does not ensure free movement of products which are in
conformity with its provisions.

102 Contrary to the contentions of the Parliament and Council, Article 3(2) of the
Directive, relating to diversification products, cannot be construed as meaning
that, where the conditions laid down in the Directive are fulfilled, products of
that kind in which trade is allowed in one Member State may move freely in the
other Member States, including those where such products are prohibited.
I - 8528

GERMANY V PARLIAMENT AND COUNCIL

103 Under Article 5 of the Directive, Member States retain the right to lay down, in
accordance with the Treaty, such stricter requirements concerning the advertising
or sponsorship of tobacco products as they deem necessary to guarantee the
health protection of individuals.

104 Furthermore, the Directive contains no provision ensuring the free movement of
products which conform to its provisions, in contrast to other directives allowing
Member States to adopt stricter measures for the protection of a general interest
(see, in particular, Article 7(1) of Council Directive 90/239/EEC of 17 May 1990
on the approximation of the laws, regulations and administrative provisions of
the Member States concerning the maximum tar yield of cigarettes (OJ 1990
L 137, p. 36) and Article 8(1) of Council Directive 89/622/EEC of 13 November
1989 on the approximation of the laws, regulations and administrative provisions
of the Member States concerning the labelling of tobacco products (OJ 1989
L 359, p. 1)).

105 In those circumstances, it must be held that the Community legislature cannot
rely on the need to eliminate obstacles to the free movement of advertising media
and the freedom to provide services in order to adopt the Directive on the basis of
Articles 100a, 57(2) and 66 of Treaty.

Elimination of distortion of competition

106 In examining the lawfulness of a directive adopted on the basis of Article 100a of
the Treaty, the Court is required to verify whether the distortion of competition
which the measure purports to eliminate is appreciable {Titanium Dioxide, cited
above, paragraph 23).
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JUDGMENT OF 5. 10. 2000 CASE C-376/98

107 In the absence of such a requirement, the powers of the Community legislature
would be practically unlimited. National laws often differ regarding the
conditions under which the activities they regulate may be carried on, and this
impacts directly or indirectly on the conditions of competition for the undertakings concerned. It follows that to interpret Articles 100a, 57(2) and 66 of the
Treaty as meaning that the Community legislature may rely on those articles with
a view to eliminating the smallest distortions of competition would be
incompatible with the principle, already referred to in paragraph 83 of this
judgment, that the powers of the Community are those specifically conferred on
it.

108 It is therefore necessary to verify whether the Directive actually contributes to


eliminating appreciable distortions of competition.

109 First, as regards advertising agencies and producers of advertising media,


undertakings established in Member States which impose fewer restrictions on
tobacco advertising are unquestionably at an advantage in terms of economies of
scale and increase in profits. The effects of such advantages on competition are,
however, remote and indirect and do not constitute distortions which could be
described as appreciable. They are not comparable to the distortions of
competition caused by differences in production costs, such as those which, in
particular, prompted the Community legislature to adopt Council Directive
89/428/EEC of 21 June 1989 on procedures for harmonising the programmes for
the reduction and eventual elimination of pollution caused by waste from the
titanium dioxide industry (OJ 1989 L 201, p. 56).

110It is true that the differences between certain regulations on tobacco advertising
may give rise to appreciable distortions of competition. As the Commission and
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GERMANY V PARLIAMENT AND COUNCIL

the Finnish and United Kingdom Governments have submitted, the fact that
sponsorship is prohibited in some Member States and authorised in others gives
rise, in particular, to certain sports events being relocated, with considerable
repercussions on the conditions of competition for undertakings associated with
such events.

1 1 1However, such distortions, which could be a basis for recourse to Article 100a of
the Treaty in order to prohibit certain forms of sponsorship, are not such as to
justify the use of that legal basis for an outright prohibition of advertising of the
kind imposed by the Directive.

112 Second, as regards distortions of competition in the market for tobacco products,
irrespective of the applicant's contention that such distortions are not covered by
the Directive, it is clear that, in that sector, the Directive is likewise not apt to
eliminate appreciable distortions of competition.

1 1 3Admittedly, as the Commission has stated, producers and sellers of tobacco


products are obliged to resort to price competition to influence their market share
in Member States which have restrictive legislation. However, that does not
constitute a distortion of competition but rather a restriction of forms of
competition which applies to all economic operators in those Member States. By
imposing a wide-ranging prohibition on the advertising of tobacco products, the
Directive would in the future generalise that restriction of forms of competition
by limiting, in all the Member States, the means available for economic operators
to enter or remain in the market.

1 1 4 In those circumstances, it must be held that the Community legislature cannot


rely on the need to eliminate distortions of competition, either in the advertising
I-8531

JUDGMENT OF 5. 10. 2000 CASE C-376/98

sector or in the tobacco products sector, in order to adopt the Directive on the
basis of Articles 100a, 57(2) and 66 of the Treaty.

115In view of all the foregoing considerations, a measure such as the directive cannot
be adopted on the basis of Articles 100a, 57(2) and 66 of the Treaty.

116In those circumstances, the pleas alleging that Articles 100a, 57(2) and 66 do not
constitute an appropriate legal basis for the Directive must be upheld.

117 As has been observed in paragraphs 98 and 111 of this judgment, a directive
prohibiting certain forms of advertising and sponsorship of tobacco products
could have been adopted on the basis of Article 100a of the Treaty. However,
given the general nature of the prohibition of advertising and sponsorship of
tobacco products laid down by the Directive, partial annulment of the Directive
would entail amendment by the Court of provisions of the Directive. Such
amendments are a matter for the Community legislature. It is not therefore
possible for the Court to annul the Directive partially.

118Since the Court has upheld the pleas alleging that the choice of Articles 100a,
57(2) and 66 as a legal basis was inappropriate, it is unnecessary to consider the
other pleas put forward by the applicant. The Directive must be annulled in its
entirety.
I - 8532

GERMANY V PARLIAMENT AND COUNCIL

Costs

119 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be
ordered to pay the costs if they have been applied for in the successful party's
pleadings. Since the Federal Republic of Germany has applied for costs to be
awarded against the Parliament and the Council, and the latter have been
unsuccessful, they must be ordered to pay the costs. The French Republic, the
Republic of Finland, the United Kingdom and the Commission must bear their
own costs pursuant to Article 69(4) of the Rules of Procedure.

On those grounds,

THE COURT

hereby:

1. Annuls Directive 98/43/EC of the European Parliament and of the Council of


6 July 1998 on the approximation of the laws, regulations and administrative
provisions of the Member States relating to the advertising and sponsorship
of tobacco products;
I - 8533

JUDGMENT OF 5. 10. 2000 CASE C-376/98

2. Orders the European Parliament and the Council of the European Union to
pay the costs, and the French Republic, the Republic of Finland, the United
Kingdom of Great Britain and Northern Ireland and the Commission of the
European Communities to bear their own costs.

Rodriguez Iglesias
Sevn
Gulmann
Ragnemalm

Moitinho de Almeida
Schintgen

La Pergola

Edward
Kapteyn

Puissochet

Wathelet

Jann
Macken

Delivered in open court in Luxembourg on 5 October 2000.

R. Grass
Registrar

I - 8534

G.C. Rodrguez Iglesias


President

The Author 2014. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

5IFFWPMVUJPOPG EJSFDUFGGFDUJO
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SophieRobin-Olivier*

1. Introduction
No account of the development European Law misses the reference to 7BO(FOEFO-PPT.
This is not because the facts are exciting, captivating, or memorable: who would enjoy
recounting the facts in 7BO(FOEFO-PPT? Nor is it because the case addressed a cause, a
socially sensitive issue. Rather, the reason for all this attention is because the European
Court of Justice (ECJ) named and shaped a new legal order, which can still be characterized by the direct effect of a whole series of provisions which are applicable to
*

Ecole de droit de la Sorbonne (University of Paris I). Email: sophie.robin-olivier@univ-paris1.fr.

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doi:10.1093/icon/mou007

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1
2
3
4

4FF CJEU Opinion 1/09, Mar. 8, 2011, E.C.R. I-1137, 65.


LUUK VAN MIDDELAAR, THE PASSAGE TO EUROPE (2013).
Case 6/64 Costa v.E.N.E.L., 1964 E.C.R. 1141.
On the contribution of preliminary ruling to the effectiveness of direct effect, TFF Joseph H.H. Weiler,
Van Gend en Loos5IF*OEJWJEVBMBT4VCKFDUBOE0CKFDUBOEUIF%JMFNNBPG &VSPQFBO-FHJUJNBDZ, 12(1) INTL
J.CONST. L. 96 (2014).
$G. Joseph H.H. Weiler, 5IF5SBOTGPSNBUJPOPG &VSPQF, 100 YALE L.J. 2403 (1991).

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their nationals and to the Member States themselves.1 For that reason, the decision is
considered a moment of passage, one of these turning points that marked the history
of European legal and political integration.2 Combined with $PTUBW&/&-.3 and the
principle of primacy, 7BO(FOEFO-PPT has allowed a considerable expansion of EU law
effects, in national courts, an evolution that was fostered by the dialogue between these
courts and the ECJ, through the channel of preliminary ruling.4
But what is the significance of the decision today? To be sure, the doctrine of direct
effect, as affirmed in the decision, remains a powerful instrument through which EU
law penetrates national legal systems. And the effectiveness of European treaties provisions owes a lot to the role assigned to national courts in the new legal order of the
European Community (EC), namely to protect individual rights conferred by the treaty.
However, EU law has evolved in so many different ways since 7BO(FOEFO-PPT was
decided, and the transformation of Europe5 has been so profound, that one may
doubt that the case can be of any help to face todays challenges concerning the effects
of EU law in national courts. To be sure, the doctrine of direct effect has not been
called into question: it remains true, and it is an essential feature of the EU legal order,
that some provisions of EU law can be relied on in national courts to claim subjective
rights. But the effects of EU law in national courts have diversified and grown more
complex to such an extent that 7BO(FOEFO-PPT seems to grasp only a thin fragment
of EU law enforcement issues. It seems, rather, that 7BO(FOEFO-PPT no longer gives an
accurate idea of the ways through which EU law penetrates member states through its
enforcement in national courts. And it would be an error, Ibelieve, to cling too rigidly
to its doctrine, in trying to address the new challenges that the evolution of EU law
has created.
The approach taken in this paper focuses on the case law developed by the ECJ. It is,
indeed, a narrow angle: it looks at one particular scene, on which EU law is expressed,
and developed, as if it could be isolated from the other sources of law development.
Of course, Ido not pretend that analyzing the courts discourse and, in particular, the
departures from expected repetitions and the moments when improvization occurs,
thus making change possible, can be properly done without taking into account elements of legal, social, or political context. However, because the purpose of this reflection is to revisit a case decided by the ECJ fifty years ago, the choice to focus mainly on
case law, existing and prospective, seems appropriate.
When Istarted to reconsider 7BO(FOEFO-PPT, Iasked myself the following question:
what would be todays version of that case? Or, rather, what situation(s), involving
the effects of EU law in national courts, would be as challenging for the ECJ today
as 7BO(FOEFO-PPT was, in its time? The answer, Ibelieve, is that the Court of Justice

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would have to rule in a case, or a series of cases, that would be substantially different
from 7BO(FOEFO-PPT. Three important shifts would characterize the action(s) before a
national court as compared to the situation in 7BO(FOEFO-PPT. First, the claim would
be based, not on one particular provision of the Treaty on EU (TEU) or the Treaty on
the Functioning of the European Union (TFEU) which satisfies the conditions to be
given direct effect, but rather on a combination of norms, regardless of their respective
direct effect. Second, instead of involving an individual requesting the benefit of a provision of the Treaty, the action would challenge an obligation imposed by the Treaty
on a private actor, not the state, or contest a coercive measure applied to an individual,
on the basis of EU law: the effects of the Treaty would be contested, not requested.
Lastly, the case would imply a prior question on the applicability of the primary law.
More precisely, the CJEU would be questioned on the applicability of the Charter of
Fundamental Rights to the situation before it, and would have to consider, at the same
time, the possibility for a national court to enforce fundamental rights protected by the
constitution of the member state to which the court belongs.
Imagining in detail this abstract case is not the purpose of this article. But sketching out the kind of situations that are most problematic allows us to shed light on
three essential outcomes of 7BO (FOE FO -PPT that no longer constitute the major
challenges concerning EU law enforcement in national courts: the existence of a particular category of (direct effect) EU norms, which implies a process of selection
among EU law provisions; the possibility for individuals to claim (subjective) rights
on the basis of the treaty; and the duty for national courts to apply EU law provisions
directly (direct enforcement). That triad (selection, rights, application) has lost most
of its mystery. As far as selection of direct effect norms is concerned, uncertainties
have been reduced to a minimum. To be sure, not all questions on that matter have
vanished in the course of EU law evolution, but they are somehow overshadowed by
a phenomenon that 7BO(FOEFO-PPT had ignored: comparison and combination of
norms in judicial reasoning. Concerning subjective rights, without denying the fact
that individuals have, since 7BO(FOEFO-PPT, gained new rights from the treaty, and
from other sources of EU law, there is more to say, today, on the obligations imposed
by the Treaty on individuals, and more generally, on the methods through which this
horizontal effect occurs (or does not occur). Lastly, the duty of national courts to apply
EU lawthe enduring importance of that function assigned to national courtsis
now coupled with one prior question that these courts have to address, and which has
become much more sensitive than before in view of the growing centrality of fundamental rights protection in the EU system: the question of the applicability of EU and
national (constitutional)law.
Thus, following 7BO(FOEFO-PPT, a dialectical approach can be constructed using a
series of pairs: selectioncombination (of norms); (individual) rightsobligations; and
applicationapplicability of EU law. This article intends to use these dialectic pairs,
successively (Sections 2 to 4), in order to examine the new questions concerning EU
law enforcement in national courts. Unsurprisingly, the conclusions of these analyses
are not straightforward. On the one hand, it is quite clear that there are more opportunities than before to mobilize EU law in national courts. This confirms what has been

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2. From selection to combination


Among the various ways in which EU law norms are invoked before national courts,
there is one which contrasts sharply with the 7BO(FOEFO-PPT concept of direct effect:
the combination of norms emanating from different sources of law. Indeed, in some
cases, it seems as if effectiveness of European law depended not on the respective legal
force of the norms invoked before the court, but on the relationship that they entertain. To be sure, this phenomenon is not specific to EU law,6 but it takes on specific
forms in EU law, in light of the specific system of norms of that legalorder.
7BO(FOEFO-PPT implied identification by judges of EU law norms possessing direct
effect: such norms could be the basis for subjective rights. The case led to distinctions
among, and the constitution of, different categories of norms, depending on their
capacity to produce direct effect. Although this is not coming to an end, and the taxonomic enterprise must go on, since many new provisions of EU law come to life with
an uncertain nature,7 the power accorded to normative combinations has made it less
important than before to ascertain the exact effect of each provision of thelaw.

2.1. Direct effect as a process of a selection


7BO(FOEFO-PPT raised the question whether a provision of the treaty (art. 12 TEU)
could be a source of individual rights that national courts should protect. To answer
this question, the Court of Justice insisted on the nature of the Community legal order,
a nature justifying the capacity of provisions mentioned in the treaty to create rights
6

For an analysis of the phenomenon in the case law of the Court of Human Rights, TFF Francoise Tulkens,
SebastienVan Droogherbroeck, & Frederic Krenc, -F soft law FUMB$PVSEFTESPJUTEFMIPNNFRVFTUJPOTEF
MHJUJNJUFUEFNUIPEF, REVUE TRIMESTRIELLE DE DROIT HUMAIN 433 (2012). For an example in Canadian labor
law, TFF Jane Fudge, 5IF4VQSFNF$PVSUPG $BOBEBBOEUIF3JHIUUP#BSHBJO$PMMFDUJWFMZ5IF*NQMJDBUJPOPG UIF
)FBMUI4FSWJDFTBOE4VQQPSU$BTFJO$BOBEBBOE#FZPOE, 37 INDUS. L.J. 25 (2008).
4FFQBSUJDVMBSMZ the provisions of the Charter of Fundamental Rights of the European Union, 2010 O.J. C
83/02 [hereinafter Charter of Rights].

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a constant evolution since the narrow concept of direct effect has been extended
to allow a much larger variety of claims based on EU law: new forms of invocability
of EU law have emerged and to some extent have transformed the notion of EU law
effectiveness in national courts. On the other hand, the rigor of direct effect, in its
original purity, has become problematic in some particular instances. This is the case
when obligations binding on individuals stem from horizontal application of provisions of primary lawin particular, free-market rules which were not meant to apply
to private actors. More broadly, the effectiveness of European Union law is too simple
an answer, it seems, in cases, more numerous than before, in which EU law imposes
obligations or constraints on individuals, rather than states. In 2013, the power of EU
law to impose transformations of national policies should not be affirmed at all costs,
without consideration to the impact of EU policies on individual rights and freedoms
protected by national Constitutions. That is an important matter that revisiting 7BO
(FOEFO-PPT also invites us to think about, in guise of conclusion (Section 5).

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169

10
11

12

13

4FFQBSUJDVMBSMZ DAMIAN CHALMERS, GARETH DAVIES AND GIORGIO MONTI, EUROPEAN UNION LAW 271 (2d ed. 2010);
MARC BLANQUET, DROIT GNRAL DE LUNION EUROPENNE 281 (10th ed. 2012).
On this expansion, TFFQBSUJDVMBSMZ Bruno de Witte, 5IF$POUJOVPVT4JHOJDBODFPG Van Gend en Loos, JO THE
PAST AND FUTURE OF EU LAW 11 (Miguel Poiares Maduro & Loc Azoulai ed, 2010).
CJEU Opinion C-176/12 Association de mdiation sociale, July 18, 2013.
On the complexity of the taxonomy implied by the Charter, and more generally, on the ambiguous nature
of principles in European Law, TFF Sophie Robin-Olivier, 5IF$POUSJCVUJPOPG UIF$IBSUFSPG 'VOEBNFOUBM
3JHIUTUPUIF1SPUFDUJPOPG 4PDJBM3JHIUTJOUIF&VSPQFBO6OJPO"'JSTU"TTFTTNFOU"GUFS-JTCPO, 1 EUR. J.HUM.
RTS. 109 (2013).
Case C-176/12 Association de mdiation sociale v. Union locale des syndicats CGT, Hichem Laboubi,
Union dpartementale CGT des Bouche-du-Rhne, Confdration gnrale du travail (CGT), Reference
lodged Apr. 16, 2012, pending.
Charter of Rights, TVQSB note 7, art 27 (concerning workers right to information and consultation
within the undertaking).

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and obligations for individuals, and not only for member states. At the same time, the
Court clearly embraced the idea that not all treaty provisions had such effect: only
under certain conditions, it indicated, can treaty provisions be invoked by individuals
in national courts, in order to claim subjective rights. Since then, the Court of Justice
has presided over the process of selection of direct-effectnorms.
In 7BO (FOE FO -PPT, the Court already mentioned the criteria to be taken into
account in order to distinguish among EU law norms: to produce direct effect, the
provisions concerned must be clear, precise, and unconditional. As the subsequent
case law showed, these criteria were given extensive interpretation, particularly when
treaty provisions were concerned, and the only true requirement became the possibility of effective enforcement, the justiciability of the law.8 This led, for example, to
granting all free movement provisions direct effect.9
As was already mentioned, the issue of selection, i.e. the identification of directly
applicable norms, is not an outdated question. The question of selection has re-emerged
with great force concerning the provisions of the Charter of fundamental rights of the
European Union. The distinction between rights and principles contained in that
instrument resembles a modern and explicit version of the distinction among EU law
provisions that was implicit in the TEU, and that the Court unveiled in 7BO(FOEFO-PPT.
As Advocate-General Cruz Villaln synthesized: the principles, in the Charter, determine the missions assigned to public authorities and are different from rights, the
purpose of which is to protect the legal situation of individualsa situation directly
defined by the text itself.10 Public authorities, Cruz Villaln added, must respect the
legal situation of individuals guaranteed by rights, but, as far as principles are
concerned, their function is much more open: principles define not individual situations, but rather general matters and outcomes that condition the action of public
authorities.11
There is a high chance that, in a number of future cases, national courts will turn to the
Court of Justice to identify the Charters provisions which are a source of subjective rights
that they have to protect. The French Cour de Cassation did exactly that, not too long ago:12
in the case of "TTPDJBUJPOEFNEJBUJPOTPDJBMF, it questioned the Court of Justice, through the
preliminary ruling procedure, on the direct effect of article 27 of the Charter.13

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However, even if the identification of direct effect norms remains important, action
(or defense) before national courts can also rest on a combination of legal references.
Precisely this method is what Advocate-General Cruz Villaln relied on in "TTPDJBUJPO
EFNEJBUJPOTPDJBMF,14 once he had reached the conclusion that article 27 of the Charter
belonged to the category of principles and was, on its own, deprived of direct effect.

2.2. Legal effects of normative combination

14

Case C-176/12 Association de mdiation sociale.

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The rise of fundamental rights, which, in EU law, has been from the outset narrowly
tied to the existence of a category of general principles, has shownas has become
more obvious with the Charter of Fundamental Rightsthat seeking direct effect was
not always the most appropriate, or the most effective, method of sustaining claims
in situations covered by EU law. In comparison, normative combination could be
described as a shift from application of the law to the interpretation of the law, if we
set aside the fact that the two operations are tightly intertwined. Direct effect would
lie on the side of application, where normative combination belongs to the realm of
interpretation. Put differently, some references produce effects directly, while others
are only considered or taken into account to construe other norms. Besides the fact
that this does not correspond to all types of combinations that have emerged in the case
law of the Court of Justice, the distinction, if any, between application and interpretation of the law is not the point Iwant to discuss in the following lines. What Iwould like
to insist on, instead, is the legal force that the Court of Justice accords to different sorts
of combination of norms, inasmuch as this solution differs radically from the process
of selection of direct-effect norms that was the outcome of 7BO(FOEFO-PPT.
To begin with, Imust admit that normative combination is a very synthetic concept for a phenomenon including a large variety of cases, which only have in common
that the solution derives from the use of a series of references, and that these references, taken separately, would be powerless. However, because what Iwant to show
and question is the shift from direct effect to a radically different way to ensure EU law
effectiveness, Iam convinced that various types of combination should be mentioned.
They differ according to the source of the norms combined (primary and secondary
legislation; soft and hard law; and EU law, international or national law); the relationships between these norms; and the different effects produced by their interaction. To
simplify, I will confine my remarks to a basic typology, distinguishing between two
categories of combinations.
In the first one, all norms combined belong to EU law: a general principle or a fundamental right is coupled with a provision of derived legislation. Using such a combination, judges were able to satisfy individual claims, whereas neither of the norms, taken
separately, could produce such effect.
In the more classical version of this association of norms, provisions of the Charter
of Fundamental Rights, notwithstanding the uncertainty concerning their direct
effect (in the language of the Charter, their identification as rights or principles)
were used to interpret directives in such a way as to allow the rights to be protected

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15
16
17

18
19
20

C-571/10 Kamberaj, Apr. 24, 2012, unreported.


C-149/10 Chatzi, Sept. 16, 2010, unreported.
Framework agreement on parental leave concluded on 14 December 1995, which is set out in the annex
to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded
by UNICE, CEEP and the ETUC, 1996 O.J. (L 145)at4.
C-149/10 Chatzi, 75.
Bundesarbeitsgericht [Federal Labor Court] Dec. 20, 1984, 2 AZR 436/83, NZA 1986, p.21 (Ger.).
Consistent interpretation raises other issues, in terms of effectiveness of EU law in national courts, which
we will address in Section3.

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by national courts to emerge. A good illustration is the ,BNCFSBK case,15 in which


the Court of Justice relied on the aim to ensure a decent existence for all those who
lack sufficient resources, as defined in article 34(3) of the Charter, to decide that a
third-country national should have the right to equal treatment in obtaining housing
benefits, according to Directive 2003/109. Similarly, in $IBU[J,16 the Court decided,
referring to the principle of equal treatment, which is one of the general principles
of European Union law, and whose fundamental nature is affirmed in Article 20 of
the Charter of Fundamental Rights, that clause 2.1 of the Framework Agreement
on Parental Leave17 read in the light of the principle of equal treatment obliges the
national legislature to establish a parental leave regime which, according to the situation in the Member State concerned, ensures that the parents of twins receive treatment that takes due account of their particular needs. It is incumbent upon national
courts, the court added, to determine whether the national rules meet that requirement and, if necessary, to interpret those national rules, so far as possible, in conformity with European Union law.18 To be sure, following $IBU[J, the claim brought
to court may not prove immediately successful; however, the reasoning, which relied
on a combination of norms, implied that the national court and the legislator must
ensure that the legitimate demand for equal treatment is satisfied.
This type of case, in which judges use fundamental rights to construe legislative provisions, is not uncommon, of course, in other legal orders. To take just one example,
German courts do not hesitate to resort to the German Constitution to interpret general provisions of the civil code. In a famous case, the Federal Labor Court decided that
the interpretation of 315 of the German Civil Code concerning the specification of
performance by one party, and requiring that this specification be equitable, had
to be consistent with article 4.Iof the German Constitution, concerning freedom of
thought. As a result, an employer was deprived of the right to oblige his employee to
perform a duty conflicting with his freedom of thought (producing books glorifying
war).19 In this case, as in the cases decided by the Court of Justice, the effect of fundamental rights does not depend on their direct effect, but it is the result of the interpretation of other norms, according to the doctrine of consistent interpretation.20
More original, and specific to EU law, are cases in which a directive and a general
principle are combined to produce effects, the former being considered a mere concretization of the latter. This combination, as a method of compensating for the lack
of implementation, or defective implementation, of directives, is an instrument specific to EU law that requires transposition in national law. A couple of well-known
cases decided by the Court of Justice demonstrate, in particular, that derived legislation

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gains force when it can be considered as implementing a general principle of law or


fundamental rights. In .BOHPME21 and ,DLEFWFDJ,22 quite remarkably, the general
principle of non-discrimination compensates for the absence of horizontal direct
effect of Directive 2000/78/EC on Equal Treatment in Employment and Occupation.23
Conversely, the directive is necessary because the jurisdiction of EU lawand the
applicability of the general principle in a given casedepends on it. The outcome of
this clever duo, as the Court pointed out in ,DLEFWFDJ, isthat,

Thus, coupled with the provisions of a directive, general principles of law can, eventually, have the same effect as rights that individuals can claim in national courts against
other individuals. This method is the one that Advocate-General General Cruz Villaln
suggests in its recent opinion in "TTPDJBUJPO EF NEJBUJPO TPDJBMF:25 the principle contained in article 27 of the Charter, concretized in article 3 of Directive 2002/14,26
precludes, he contends, national legislation that excludes some workers from being
taken into account when calculating the number of employees of the company in
order to ensure information and consultation.
The virtue of the association of a general principle and the provisions of a directive can also lie in an extension of the field of application of the derived legislation. In
%BOPTB,27 for instance, the scope of application of directives on equal treatment of men
and women was extended to include a person whose status as a worker was uncertain.
Referring to the principle of non-discrimination of men and women, and article 23 of
the Charter of Rights, the Court decidedthat:
[I]t is of no consequence, whether Ms Danosa falls within the scope of Directive 92/85 or of
Directive 76/207, orto the extent that the referring court categorises her as a self-employed
personwithin the scope of Directive 86/613, which applies to self-employed person. . . .

And itadded:
<8>IJDIFWFSEJSFDUJWFBQQMJFT, it is important to ensure, for the person concerned, the protection
granted under EU law to pregnant women in cases where the legal relationship linking her to
another person has been severed on account of her pregnancy.28
21
22
23

24
25
26

27
28

C-144/04 Mangold, 2005 E.C.R. I-09981.


C-555/07 Kckdeveci, 2010 E.C.R. I-00365.
Council Directive 2000/78/EC of Nov. 27, 2000 Establishing a General Framework for Equal Treatment
in Employment and Occupation, 2000 O.J. (L 303)16.
C-555/07 Kckdeveci, 43.
Case C-176/12 Association de mdiation sociale.
Directive 2002/14/EC of the European Parliament and of the Council of Mar. 11, 2002 Establishing
a General Framework for Informing and Consulting Employees in the European CommunityJoint
Declaration of the European Parliament, the Council and the Commission on Employee Representation,
2002 O.J. (L 80)29.
C-232/09 Danosa, 2010 E.C.R. I-11405.
70 of the Danosa case, TVQSB note 7, 70.

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European Union law, more particularly the principle of non-discrimination on grounds of age
as given expression by Directive 2000/78, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that periods of employment
completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.24

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29
30

31
32
33

34

35
36
37

Demir and Baykara v.Turkey, App. no.34503/97, Eur. Ct. H.R., Nov. 12, 2008.
To interpret art. 11 of the European Convention, the Court referred to the Right to Organise and
Collectively Bargaining Convention (ILO No. 98), 96 U.N.T.S. 257, entered into force July 18, 1951, and
to the interpretation of this convention by the ILOs Committee of Experts. It also mentioned Labour
Relations (Public Service) Convention (ILO No. 151), 1218 U.N.T.S. 87, entered into force Feb. 25, 1981.
Among European instruments, the Court used art. 6(2) of the European Social Charter, Oct. 18, 1961,
529 U.N.T.S. 89, E.T.S. No. 35 (which the state concerned, Turkey, has not ratified), according to which
all workers and all unions are granted the right to bargain collectively. The court also found support in
the meaning attributed to this provision by the European Committee of Social Rights (ECSR). Charter of
Rights, TVQSB note 7, art. 28 was also quoted.
On that point, most recently, TFF Case C-617/10, kerberg, Feb. 26, 2013, unreported, 44.
Joined Cases C-411/10 and 493/10 N.S.and others, Dec. 21, 2011, unreported.
Joined Cases C-335/11 and C-337/11, Ring, Apr. 11, 2013, unreported, concerning the notion of
disability.
Case C-312/11, Commission v. Italy, July 4, 2013, unreported, concerning the notion of reasonable
accommodation.
Case C-312/11, Commission v.Italy.
The Convention was signed by the EU on Mar. 30, 2007, and formally ratified on Dec. 23, 2010.
On see topic, TFF JEAN-SYLVESTRE BERG, LAPPLICATION DU DROIT NATIONAL, INTERNATIONAL ET EUROPEN (2013).

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Eventually, it remained a mystery which directive should apply, but that did not matter
to the Court: the claimant obtained the right to equal treatment.
Another category of combinations covers a variety of sources that do not all belong
to the EU legal order. In the field of fundamental rights protection, this phenomenon
reaches beyond the borders of EU law and, again, it is not our objective to demonstrate
that EU law is singular in this respect. In terms of normative combination and the
use of a variety of instruments that do not belong to its own legal order, the ECJ takes
a path that a number of other courts sometimes follow. At the European Court of
Human Rights, for example, the decision in %FNJSBOE#BZLBSBW5VSLFZ29 is a perfect
illustration of a reasoning involving a series of sources of different origin and nature.30
Most striking, in this category of cases, is the recourse to international law (by
which Imean norms other than the European Convention on Human Rights (ECHR),
which has a very specific status in EU law31). Of course, international law is often
relied on, alongside EU norms, because in a number of instances it is binding on EU
institutions. One recent example is /4.,32 where the Court of Justice relied on the
duty of the Member States to interpret and apply Regulation 343/2003 in a manner
that ensures due respect of the Geneva Convention of July 28, 1951 and the Protocol
of January 31, 1967 relating to the status of refugees, and other relevant treaties
(as required by art. 78 of the TFEU). The more recent 3JOH33 and $PNNJTTJPOW*UBMZ
cases34 are other examples. In these cases, the Court of Justice decided that Directive
2000/78 on equal treatment in employment and occupation 35 had to be construed
according to the UN Convention on the Rights of Persons with Disabilities ratified by
the EU.36 Taking into account the UN Convention has led to an extension of the scope
of EU legislation, and as a result, in 3JOH, rights could be claimed under the Directive.
But as 3JOH also shows, even when international law is binding on the EU, the combination of EU and International law, is not at all a simple story.37 Without entering too
much into this thorny problem, the 3JOH case gives an idea of this complex relationship

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38
39

40

41
42

43
44
45

On this aspect of the case, TFF AUGUSTIN BOUJEKA, RECUEIL DALLOZ 1388 esp. 78 (2013).
On this type of combination, TFF Sophie Robin-Olivier, 5IF.BHJDPG $PNCJOBUJPO6TFTBOE"CVTFTPG UIF
(MPCBMJ[BUJPOPG 4PVSDFTCZ&VSPQFBO$PVSUT, JO EUROPEAN LEGAL METHOD: SYNTHESIS OR FRAGMENTATION? 307 (Ulla
Neergaard, Ruth Nielsen & Lynn Roseberry eds, 2011); Sophie Robin-Olivier, /PSNBUJWF*OUFSBDUJPOTBOE
UIF%FWFMPQNFOUPG -BCPVS-BX"&VSPQFBO1FSTQFDUJWF, JO 11 CAMBRIDGE YEARBOOK OF EUROPEAN LEGAL STUDIES
377 (Catherine Barnard & Okeoghene Odudu eds, 2009).
On this method, TFF Cesare Pitea, *OUFSQSFUJOH UIF &$)3 JO UIF -JHIU PG  i0UIFS *OTUSVNFOUTu 4ZTUFNJD
*OUFHSBUJPOPS'SBHNFOUBUJPOPG 3VMFTPO5SFBUZ*OUFSQSFUBUJPO , JO INTERNATIONAL COURTS AND THE DEVELOPMENT
OF INTERNATIONAL LAW, ESSAYS IN HONOR OF PROF. TULLIO 545 (Nerina Boschiero, Tullio Scovazzi, Cesare Pitea &
Chiara Ragni eds, 2013).
Demir and Baykara v.Turkey, App. no.34503/97, Eur. Ct. H.R., Nov. 12, 2008.
C-438/05 The International Transport Workers Federation and The Finnish Seamens Union, 2007
E.C.R. I-10779 [hereinafter Viking].
C-341/05 Laval un Partneri, 2007 E.C.R. I-11767 [hereinafter Laval].
C-438/05 Viking, 43; C-341/05 Laval, 90.
C-271/08 Commission v.Germany, 2010 E.C.R. I-07091.

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and of the flexibility of the law that goes with it: the primacy of international agreements concluded by the European Union over instruments of secondary law, stated
the Court, means that those instruments must BTGBSBTQPTTJCMF be interpreted in a
manner that is consistent with those agreements. What happens if such consistent
interpretation is not possible?38 International law is, at least temporarily, paralyzed. As
we will see in more detail below (Section 3), the same is also true of the relationship
between EU law and national law when the former does not have direct effect.
This situation, in which EU law is bound (although with some degree of flexibility) by international law, is different from one in which international law, without
being part of the European legal order, is used in a comparative way, in order to show
convergence towards a certain interpretation of a right or the recognition of a fundamental right.39 This consensual method,40 comparable to the method used by
the Court of Human Rights in the %FNJS BOE #BZLBSB W 5VSLFZ case,41 was applied
in the famous 7JLJOH42 and -BWBM43 cases, where the fundamental right to collective
action was recognized. In these two cases, the Court quoted, among other references,
the European Social Charter, signed at Turin on October 18, 1961 and Convention
No. 87 concerning Freedom of Association and Protection of the Right to Organise,
adopted on July 9, 1948 by the International Labour Organisation.44 More recently,
in $PNNJTTJPOW(FSNBOZ,45 concerning the right to collective bargaining, the Court
relied, once again, on article 6 of the European Social Charter.
If this method remains exceptional, the fact that it is enforced in such important
and difficult cases suggests that it must be taken seriously. To be sure, the cases do not
give much force to the fundamental rights that they identify, based on convergence
of a series of legal instruments. Rights are brought to life, but without any effect in
the cases concerned. The effectiveness of EU law, as far as these rights are concerned
appears illusory. But this does not dwarf the potential efficiency of the process of
combination.
Considering the different categories of normative combinations that contribute to
the development of EU law, it is no exaggeration to say that the effects of EU law in
national courts no longer depend on the identification of norms capable of producing

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3. From rights to obligations, and flexible effects of EU law


in nationalcourts
A second line that can be drawn from 7BO(FOEFO-PPT comes from this essential element of the case: direct effect was defined as a mechanism, through which individuals
could obtain SJHIUT in member states courts, based on EU law and, more precisely and
more importantly, on provisions of primary law. Although this was not absent in 7BO
(FOEFO-PPT, the evolution of EU law, since the case was decided, has allowed that,
in a larger number of hypotheses, individuals be brought before national courts, on
the basis of obligations imposed on them by provisions of the treaties. With so-called
horizontal direct effect, EU primary law has shifted away from the dominant concern
that permeated 7BO(FOEFO-PPT: submitting states to an orthopedic treatment aimed
at reforming their public policies, along the lines of internal markets requirements.
In that respect, however, the evolution can still be seen as a continuation of 7BO(FOE
FO-PPT: the effectiveness of EU law could justify, to some extent, the submission of private actors to TFEU, and to internal market rules in particular. In comparison, it is no
longer a mere extension of direct effect, when, in the absence of direct effect, national
courts are required to interpret national law in conformity with European Union law:
under the indirect horizontal effect doctrine, the effects of EU law become dependent
on the capacity of national courts to tailor national law to European fashion, a madeto-measure approach contrasting with 7BO (FOE FO -PPT uniform requirement for
national courts to grant subjective rights.

3.1. Vertical direct effect as a source of subjectiverights


As opposed to the French version of the case, the Italian version of 7BO(FOEFO-PPT is
explicit about the fact that individuals can claim TVCKFDUJWFSJHIUT on the basis of treaty
provisions. The case made it clear that the treaty was available to entertain private

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certain legal effects. Rather, it has become crucial to take into account the fact that EU
law provisions are often effective when articulated with one another, or with norms
borrowed from other legal systems, which are not necessarily binding, but can allow
for an evolutive interpretation of the law. Although this phenomenon remains limited,
considering the modest number of cases, especially when identifying new fundamental rights is at stake, it indicates that the effects of EU law norms can depend not on
their intrinsic nature, but on their association with other references. As a result, there
is space, Ibelieve, for a theory of combined effects of norms in the EU legal order,
a multifaceted model that would depart quite radically from the self-executing and
self-sufficient norm celebrated in 7BO(FOEFO-PPT. This new model can be a source
of increased effectiveness of EU law in national courts. It can also be seen as the outcome of an adaptation of legal actors, faced with the congenital weakness or incompleteness that characterizes some provisions of European law: building constructive
relationships between norms in order to compensate this weakness has become an
essential part of legal reasoning.

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3.2. Horizontal direct effect and the problem of submitting individuals


to free marketrules
The evolution that led to the recognition of horizontal direct effect to Treaty provisions, and, in particular, free movement rules has gone, until recently, largely unnoticed. One reason for this is that the extension was only apparent in rare cases (and not
necessarily very clear in all of them). As a result, it did not seem to imply important
changes at once. The story has been told many times,48 but recent examples have
brushed away, it seems, obstacles or limits to the horizontal direct effect of free movement rules, even if the Court of Justice has, not so long ago, continued to suggest that
free trade provisions of the EU treaty were public law rules.49
46
47

48

49

For a recent example, in the field of gambling, TFF C-347/09 Dickinger and mer, 2011 E.C.R. I-08185.
On the notion of horizontal effect, TFF FH, Achim Seifert, -FGGFUIPSJ[POUBMEFTESPJUTGPOEBNFOUBVY, 48
REVUE TRIMESTRIELLE DE DROIT EUROPEN 801 (2012).
4FF FH, Stefaan Van den Bogaert, )PSJ[POUBMJUZ5IF$PVSU"UUBDLT , JO The Law of the Single European
Market 126 (Catherine Barnard & Joanne Scott eds, 2002); and Stephen Weatherhill, #PTNBO$IBOHFE
&WFSZUIJOH5IF3JTFPG &$4QPSUT-BX, JO THE PAST AND FUTURE OF EU LAW, TVQSB note 9, 483.
See in particular: Case C-159/00 Sapod Audic, 2002 E.C.R. I-05031, 74: contractual provision cannot
be regarded as a barrier to trade for the purposes of Article 30 of the Treaty since it was not imposed by
a Member State but agreed between individuals. The court provides no justification for this solution. On
the publicprivate distinction concerning free movement rules, TFF FH., Okeoghene Odudu, 5IFQVCMJD
QSJWBUFEJTUJODUJPOJO&6*OUFSOBM.BSLFU-BX, 46(4) REVUE TRIMESTRIELLE DE DROIT EUROPEN 826 (2010) and Loc
Azoulai, 4VSVOTFOTEFMBEJTUJODUJPOQVCMJDQSJWEBOTMFESPJUEFM6OJPOFVSPQFOOF, 46(4) REVUE TRIMESTRIELLE
DE DROIT EUROPEN 842 (2010).

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claims in municipal courts. As a result, not only would citizens of member states benefit directly from the treaty, but they would, as the court pointed out, exercise an
effective supervision on member states to ensure that they respect EU law requirements. Individual rights derived from the Treaty were key, as through them EU law
could penetrate national legal orders and transform them. And it did. In particular,
when direct effect of common market rules was affirmed, it became clear that member
states would have to face requests based on free movement of goods, persons, capital
or free provision of services and, as a consequence, would have to reform their systems
of regulation in many different fields.46
Although the Court also mentions in 7BO(FOEFO-PPT that the treaty imposes obligations on individuals, the lesson from that particular case was that national courts
had to protect individual rights, not that they had to make sure that obligations deriving from the treaty were enforced against individuals. At the time, the obligations
binding on individuals were indeed quite limited. Competition law was an important
source of such obligations, as antitrust rules and the prohibition of abuse of a dominant position were explicitly targeting the behavior of private companies. They still do,
of course, and continue to frame the behavior of private economic actors. But what
has been a major source of extension of obligations binding on private parties is the
recognition of a horizontal direct effect47 to treaty provisions concerning the internal market. This evolution has raised new questions concerning the consequences of
direct effect of treaty provisions.

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50
51
52
53
54
55
56
57

C-438/05 Viking.
C-341/05 Laval.
Case C-411/98 Ferlini, 2000 E.C.R I-8081.
Case C-411/98 Ferlini, 50.
Case C-172/11 Erny, June 28, 2012, unreported.
*E. 36.
Case C-94/07 Racanelli, 2008 E.C.R. I-05939.
On the problems of horizontal direct effect of Constitutional law, and in particular EU fundamental freedoms, TFF  FH., Hugh Collins, 5IF $POTUJUVUJPOBMJ[BUJPO PG  &VSPQFBO 1SJWBUF -BX, JO THE MANY CONCEPTS OF
SOCIAL JUSTICE IN EUROPEAN PRIVATE LAW 133, 142146 (Hans Micklitz ed., 2011. 4FFBMTP Seifert, TVQSB note 47.

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In spite of this inconsistency, the language used in 7JLJOH50 is unambiguous: there is


no indication in case law, the Court of Justice said, that horizontal effect applies only
to associations or to organisations exercising a regulatory task or having quasi-legislative powers. No distinction is made, in particular, between the different types of private actions, depending on their impact, a distinction that Advocate-General Maduro
supported in his opinion in the case. In the subsequent -BWBM case,51 the Court simply
pointed that the right of trade unions to take collective action, whereby undertakings
established in other member states may be forced to sign a collective agreement, is liable
to make it less attractive, or more difficult, for such undertakings to carry out its activity in the State concerned, and therefore constitutes a restriction on the freedom to
provide services within the meaning of Article 49 EC (now art. 56 TFEU). In sum,
according to these decisions, only the restriction, or potential restriction, on free exercise of economic freedom matters, regardless of the private action that inducesit.
Even more striking is the comparison of two cases, one decided in 2000 and the
other in 2012. In 'FSMJOJ,52 it seems, the Court limited to certain hypothesis the horizontal application of the non-discrimination rule in a case of free movement of workers:
article 6 of the Treaty also applies in cases where a group or organisation exercises
a certain power over individuals and is in a position to impose on them conditions
which adversely affect the exercise of the fundamental freedoms guaranteed under
the Treaty.53 In &SOZ,54 in contrast, the Court went much further, bluntly affirming
that the prohibition of discriminations laid down in article 45(2) TFEU on free movement of workers applies not only to the actions of public authorities, but also to all
agreements intended to regulate paid labour collectively, BTXFMMBTUPDPOUSBDUTCFUXFFO
JOEJWJEVBMT55 As in a previous case,56 one must admit, this solution only concerns the
prohibition of discriminations based on nationality, which may well be a limit to the
extension of horizontal effect of free movement rules, and could be justified by the particular status of the principle of non-discrimination, as a general principle of EUlaw.
This possible restriction of horizontal direct effect of free market rules does not call
into question the observation that, in the course of EU law development, private parties have been subject to certain provisions of the treaty concerning the realization
of the internal market, that were considered to be binding only on governments at
the time of 7BO(FOEFO-PPT. Through horizontal direct effect, these provisions of the
treaty stepped into the realm of private law. The constitutionalization of private law
that this evolution achieves creates a series of problems that the Court of Justice has
not yet addressed in its case law.57 Rather, although the transposition of a reasoning

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58
59
60

61
62

C-172/11 Erny.
Case 120/78 Cassis the Dijon, 1979 E.C.R. 649.
For an illustration concerning the issue of sanctions in Swedish courts, after the decision of the Court of
justice in the Laval case (C-341/05), TFF Jonas Malmberg, 5SBEF6OJPO-JBCJMJUZGPSi&66OMBXGVMu$PMMFDUJWF
"DUJPO, 3(1) EUR. LABOUR L.J. 5 (2012).
Collins, TVQSB note 57, at 143.
*E

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designed for cases involving states or other public entities is not necessarily appropriate, where private law relationships are concerned, the Court of Justice had, until
now, ignored the need for a separate doctrine when obligations binding on individuals are derived from free market rules. This is particularly striking in &SOZ,58 which
addressed the justification of restrictive measures: neither the scope nor the content
of those grounds of justification is in any way affected by the public or private nature
of the disputed provisions, the court contended. Yet, it is clear that justification of
restrictions by reason of general interest or public good can hardly be available when
private actors are responsible for a restriction to free movement. The crucial issue of
justification of free movement restrictions, to which the Court and legal scholars have
devoted enormous attention after $BTTJTUIF%JKPO,59 remains a virgin land, when private restrictive conducts are atstake.
In addition, the types of actions and remedies available, in cases of treaty violations
resulting from the behavior of individuals, need to be adapted to the particular situation of private actors.60 While making states liable for free movement restrictions is the
inevitable, and acceptable, outcome of their commitments at the EU level, the same is
not true for private actors. In particular, when the latter fulfill a particular economic
or social function, which is the case for trade unions or other non-governmental
organizations, making them liable under free movement provisions may jeopardize
their very existence. This is not only because of potentially high damages. The unpredictability generated by the introduction of constitutional arguments (the reference
to fundamental freedoms) in private law disputes is also problematic. Indeed, uncertainty may deter the organizations concerned from taking action, although this action
can be considered socially useful. Along the same lines, when fundamental freedoms
reach the sphere of contractual relations, the resulting disruption in the parties commitments should also be taken into account. Until now, insufficient attention was
paid to the way in which private law has already sought to balance competing rights
through its legal doctrines and rules.61
In comparison, the requirement of consistent interpretation of EU law, a source of
indirect horizontal effect, seems more respectful of existing settlements between competing rights.62 The questions it raises are of a different kind, but still closely related to
the effectiveness of EU law in national courts: the issue is not the overbroad conception
of what the effectiveness of EU internal market law requires (imposing obligations on
individuals), but the variability of this effectiveness when it applies to private relationships, depending on the possible interpretations of national law according to national
courts. This solution is a far cry from the recognition of direct effect to a treaty provision, which allowed individuals to claim the same right before all national courts.

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3.3. Indirect horizontal effect and the challenge of variable


effectiveness

63

64
65

66

67

68

On this doctrine, TFF FH., ALLAN ROSAS & LORNA ARMATI, EU CONSTITUTIONAL LAW 7276 (2012). On the distinction between direct and indirect effect, TFF ROBERT SCHTZE, EUROPEAN CONSTITUTIONAL LAW, 2012, 304.
Case C-282/10 Dominguez, Jan. 24, 2012, unreported, 24.
For an example in German law, TFF Bundesverfassungsgericht [Federal Constitutional Court] Sept. 19,
2006, JZ 62 (2007), at 887 (Ger.), a decision, in which the German Constitutional Court found that the
right to a fair procedure guaranteed by the German Constitution had to be interpreted in light of art. 36
of the Vienna Convention of Consular Relations, 596 U.N.T.S. 261, entered into force Mar. 19, 1967.
4FF  FH., Gerrit Betlem & Andr Nollkaemper, (JWJOH &GGFDU UP 1VCMJD *OUFSOBUJPOBM -BX BOE &VSPQFBO
$PNNVOJUZ-BXCFGPSF%PNFTUJD$PVSUT"$PNQBSBUJWF"OBMZTJTPG UIF1SBDUJDFPG $POTJTUFOU*OUFSQSFUBUJPO,
14 EUR. J. INTL L. 569 (2003); and Antonios Tzanakopoulos, %PNFTUJD $PVSUT JO *OUFSOBUJPOBM -BX 5IF
*OUFSOBUJPOBM+VEJDJBM'VODUJPOPG /BUJPOBM$PVSUT, 34 LOY. L.A. INTL & COMP. L.REV. 133 (2011).
For a stimulating reflection on the Europeanization of private law, TFF Daniela Caruso, 5IF.JTTJOH7JFXPG 
UIF$BUIFESBM5IF1SJWBUF-BX1BSBEJHNPG &VSPQFBO-FHBM*OUFHSBUJPO, 3 EUR. L.J. 3 (1997).
For a recent illustration, see C-617/10kerberg, 24: tax penalties and criminal proceedings to which
Mr kerberg Fransson has been or is subject are connected in part to breaches of his obligations to
declare VAT according to EU law. On that decision, TFF, in particular, Denys Simon, 4 Revue Europe,
14 (2013); Michel Aubert, Emmanuelle Broussy & Herve Cassagnadre, $ISPOJRVFEFKVSJTQSVEFODFEFMB
$+6&, 20 ACTUALIT JURIDIQUE DROIT ADMINISTRATIF 1154, 11541156 (2013).

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The doctrine of indirect effect requires national courts to interpret national law in
the light of EU law.63 Indirect effect is a method of ensuring the effect of EU law when
direct effect is missing. As the Court of Justice has stated: this obligation to interpret
national law in conformity with European Union law is inherent in the system of the
Treaty on the Functioning of the European Union, since it permits national courts,
for the matters within their jurisdiction, to ensure the full effectiveness of European
Union law when they determine the disputes before them.64 If this requirement is
inherent in the system of the Treaty, as the Court has mentioned, it is also part of a
more general trend: recently, domestic courts have, outside any European obligation,
relied on the doctrine of indirect effect to give force to international law.65 This method
of internalization of international law, transcending the distinction between monist
and dualist systems, has retained much attention, and concern, beyond the frontiers
of EU law.66
In EU law, consistent interpretation was used in applying EU law in disputes between
private parties: individuals were subject to EU law provisions, even when those provisions had no horizontal direct effect. The requirement of a consistent interpretation
implies consideration of EU law in many cases in which it generates no subjective
rights that can be claimed by an individual, but may still result in unexpected duties or
burdens for individuals. Thus, indirect effect contributes, when applied horizontally, to
increased obligations on individuals, resulting from EU law developments.
The progress of harmonization in many fields of private law,67 criminal law, or tax
law,68 has resulted in new rights and duties for member states citizens, which, in most
instances, did not need the doctrine of direct effect, nor any theory about the effects
of EU law in national courts, to be enforced: these obligations, having their source in
EU directives, only applied after implementation through internal law. However, the
impact of directives themselves in private disputes has become more and more obvious

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69
70

71
72

73

74

75
76
77

Case 41/74 Van Duyn, 1974 E.C.R. 1337.


Case C-91/92 Faccini Dori, 1994 E.C.R. I-03325, and for a recent confirmation, TFF Case C-282/10
Dominguez.
$G. Case C-282/10 Dominguez.
On the different ways to invoke norms of EU law, TFF FH., Koen Lenaerts & Tim Corthaut, 0G #JSETBOE
)FEHFT5IF3PMFPG 1SJNBDZJO*OWPLJOH/PSNTPG &6-BX, 31 EUR. L.REV. 287 (2006).
For a consecration of this doctrine, TFF Case 14/83 Von Colson, 1984 E.C.R. 01891 and Case C-106/89
Marleasing, 1990 E.C.R. I-04135.
For a nuance, in the field of criminal law, DPNQBSF Case C-168/95 Arcarao, 1996 E.C.R. I-04705 and
Case C-105/03 Pupino, 2005 E.C.R. I-05285.
On the power of the duty of consistent interpretation, TFF Lenaerts & Corthaut, TVQSB note 72.
Which is exactly what happened in Case C-282/10 Dominguez.
C-105/03 Pupino.

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over time. But, having accepted long ago that directives could have vertical direct
effect,69 the Court of Justice has, continuously, refused to give horizontal direct effect
to their provisions.70 As a result, directives are still considered not to be binding on individuals, and should not be a source of obligations for them, the Court continuously
confirmed.71 However, at the same time, the ECJs case law has constructed bypasses,
allowing directives to produce effects in private disputes.72 And these bypasses, including indirect horizontal effect,73 have proved, QSJNB GBDJF, to be as powerful as direct
horizontal effect.74
At first, consistent interpretation seems to be a very basic demand, in line with the
principle of sincere cooperation laid down at article 4(3) TFEU. But, looking closer, it is
not so trivial as it seems.75 Consistent interpretation compels judges to overrule previous interpretations, if needed. This means, possibly, to introduce, without notice, an
unexpected change in the law.76 Of course, overruling also happens in member states
courts, without EU commanding it. But the disruption it creates, depriving citizens
of their legitimate expectations, should make it exceptional. As a method prescribed
by EU law to give effect to a directive when states have failed to implement it properly,
overruling loses its marginality. This is not, to say the least, a satisfying way for EU law
to penetrate national legal systems.
However, the most problematic aspect of consistent interpretation, related to EU
law effectiveness in national courts, lies elsewhere. The outcome of the order to interpret national law in conformity with EU law very much depends on the flexibility of
national law. When the provisions of national legislation that are inconsistent with
EU law are very clear and precise, according to their interpreters, EU law will have
little impact, because interpreting DPOUSBMFHFN is not required.77 When, on the contrary, the fabric of national law is soft, malleable, or at least considered so by those
in charge of its enforcement, the impact of EU law will be potentially much stronger.
As a result, the penetration of EU law into national legal orders depends on national
legislators, national legislative styles, and national techniques of interpretation. To
be sure, the Court of Justice does not leave entire discretion to national courts, and
requires that they try as hard as they can to achieve consistent interpretation, which
implies, for instance, that they take the whole body of domestic law into consideration and make use of the interpretative methods recognized by domestic law with

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4. From application to applicability


According to 7BO(FOEFO-PPT, national courts must apply treaty provisions, and
protect individual rights that they create. The mission entrusted to national courts
in that case imposed role splitting:79 national judges were required to act both as
organs of national and European judiciary, and apply the rules emanating from two
different legal orders. Fifty years after 7BO(FOEFO-PPT, it is still not absolutely sure
that all national courts have fully understood, and accepted, that role. Looking, for
instance, at the variations in the use of the preliminary ruling procedure among
national courts80 suffices to indicate that national contexts have some influence on
78
79

80

C-282/10 Dominguez, 3031.


On this theory and its application to EU law, TFF Antonio Cassese, 3FNBSLT PO 4DFMMFT 5IFPSZ PG  i3PMF
4QMJUUJOHu ddoublement fonctionnel
JO*OUFSOBUJPOBM-BX, 1(1) EUR. J.INTL L. 210 (1990).
For recent statistics, TFF the Annual Report of the Court of Justice for 2012 (2013), http://curia.europa.
eu/jcms/jcms/Jo2_7000/%202013.

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a view to ensuring that EU law is fully effective. Eventually, however, it remains clear
that such interpretation is not always possible.78
The resulting flexibility concerning the effects of EU law throughout the Union contrasts with 7BO(FOEFO-PPT, a case in which the Court decided what the effect of an
EU law norm was going to apply in all states and before all courts. This flexibility could
be considered as an aspect of procedural autonomy, a concept that describes and justifies the limited effectiveness of EU law, in the absence of a complete system of justice
and procedural rules. Because procedural autonomy concerns remedies, it may indeed
result in differences in the enforcement of EU law. But the various consequences of consistent interpretation, which depend on national substantive law, would imply a considerable extension of that concept. Indeed, the hypothesis is one in which the variation
in the implementation of EU law does not depend on the system of justice and procedures, but on the legal force given to the EU provisions concerned, in each national
court: the variation concerns the binding force of the norm. The doctrine of consistent
interpretation admits, contrary to 7BO (FOE FO -PPT, that it is not possible, for every
individual, to expect that EU law will have a pre-determined effect, in national courts.
As a result of consistent interpretation, individual claims will thrive in some
national courts, and obligations will be imposed on individuals as a result, whereas,
in others, they will be unsuccessful because of the limits in the courts power to interpret national law. This solution seems quite remote from the idea of direct application
and full effectiveness of EU law: beyond procedural autonomy, EU law effectiveness
is made dependent on the specificity of national substantive laws and methods of
interpretation.
If this is acceptable, and the effect of EU law in national courts can differ depending on the substance of national law and the techniques of interpretation available to
national courts, there may be a case for more flexibility in other instances, in particular when applicability of constitutional rights is concerned.

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81
82

83

See ECJ Opinion 1/09, Mar. 8, 2011, E.C.R. I-1137, 69.


$G. the Consolidated Version of the Treaty on the Functioning of the European Union art. 6(1), 2008 O.J.
C 115/47 [hereinafter TFEU].
Case C-34/09 Ruiz Zambrano, 2011 E.C.R. I-01177; Case C-434/09 McCarthy, 2011 E.C.R. I-03375;
Case C-256/11 Dereci, 2011 E.C.R. I-11315.

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the impact of EU law in national courts. However, in terms of effective application of


EU law norms in national courts, there is little doubt that direct effect, coupled with
preliminary references, contributed extensively to effective application of EU law. The
collaboration of national courts with the Court of Justice81 was rightly considered a
decisive source of EU law effective enforcement.
Today, the issue of EU law enforcement in national courts is faced with another
major challenge: the uncertainty concerning the applicability of EU law. In recent
times, this question has been particularly visible, and strenuous, in the field of fundamental rights protection. On one side, the question is one of applicability of EU
law provisions protecting fundamental rights. It has, indeed, become a more acute
issue since the Charter of Fundamental Rights has gained the same legal value as
the Treaties with the Lisbon Treaty,82 and at a time when it is settling in the EU legal
environment. To be sure, this does not mean that applicability has not been a major
concern in other fields, such as free movement of citizens, as the ;BNCSBOP saga illustrated,83 but the issue concerning the applicability of the Charter of Fundamental
Rights has a much broader scope. On the other hand, fundamental rights protection
by national courts depends on the applicability of national constitutions protecting
these rights and freedoms. In this respect, the question that arises, and that national
courts have to face, concerns the restriction to the protection of fundamental rights
granted by national constitutions, which is, or should be, required in order to ensure
effectiveness of EU law. The ever-growing impact of EU policies on fundamental rights
has brought to the fore the question of the limits to the effectiveness of EU law which
would leave room for national constitutions. This issue touches on a tension deeply
rooted in the history of EU federalism.
Considered from these two angles, the protection of fundamental rights appears as
one of the most important domains, if not the most important, in which EU law effectiveness is challenged, these days, in relation with the issue of applicability of EU and
national law. This has been illustrated in recent important cases. Correlatively, role
splitting is no longer the new frontier for national courts, but their mission to ensure
a distribution of roles, when confronted with a plurality of sources of protection of
fundamental rights and freedoms. Some of the hardest questions, for national courts,
are no longer whether EU law contains rights that they have to protect, but rather, on
the one hand, whether fundamental rights embedded in EU law can apply in the case
before them (a question of applicability of fundamental rights protected by the EU)
and, on the other hand, whether they have power, and to what extent, to guarantee a
higher degree of protection of fundamental rights on the basis, for example, of their
own constitution, even if the situation lies within the scope of EU law (a question of
applicability of constitutional or international law, in situations falling under EUlaw).

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183

The answers to both questions are crucial for the enforcement of EU law in member
states courts. The applicability of fundamental rights protected by EU law would be
a mundane question, although no less tricky, for that matter, on the jurisdiction of
EU law, if the question had not given rise to recent developments in the case law of
the Court of Justice that need to be confronted with the doctrine of EU law effectiveness in national courts. As far as the applicability of national constitutional rights is
concerned (or rather, as the case law shows, the refusal, by the Court, to accept this
applicability), recent developments do not only show that the need to ensure EU law
effectiveness, an heritage of 7BO(FOEFO-PPT, resists the passage of time: the question
concerning there being room for national law when the fabric of EU law is only loosely
woven, has become more crucial thanever.

Since the Charter of Fundamental Rights has been proclaimed, and, even more so,
since the Lisbon Treaty conferred the status of primary law on that instrument, the
delimitation of its scope of application has been a major concern and a source of
uncertainty in national courts in charge of enforcing EU law, as 7BO(FOEFO-PPT made
clear. Interpretations of article 51(1) of the Charter, according to which the Charter
only applies to member states when they are implementing EU law, are not unanimous. Whether this provision should be narrowly construed to include only situations
of actual implementation of EU law or should be interpreted more extensively to allow
EU fundamental rights to apply in all situations falling within the scope of EU law, has
been the source of important debates.84
Recently, in the LFSCFSH case, the Court of Justice showed preference for the extensive approach.85 Questioned on the application of the OFCJTJOJEFN principle laid down
in article 50 of the Charter to criminal proceedings and tax penalties for tax evasion,
the Court answered that in essence, the fundamental rights guaranteed in the legal
order of the European Union are applicable in all situations governed by European
Union law, but not outside such situations.86 And the Court went on to explain
that definition of the field of application of the fundamental rights of the European
Union is borne out by the explanations relating to Article 51 of the Charter, which,
in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of
the Charter, have to be taken into consideration for the purpose of interpreting it.
84

85

86

Most recently, TFF Sara Iglesias Sanchez, 5IF$PVSUBOEUIF$IBSUFS5IF*NQBDUPG UIF&OUSZJOUP'PSDF0G UIF


-JTCPO5SFBUZPOUIF&$+T"QQDIPBDIUP'VOEBNFOUBM3JHIUT, 49 COMMON MKT L.REV. 1565 (2012); Heidi
Kaila, 5IF4DPQFPG "QQMJDBUJPOPG UIF$IBSUFSPG 'VOEBNFOUBM3JHIUTPG UIF&VSPQFBO6OJPOJOUIF.FNCFS
4UBUFT, JO CONSTITUTIONALISING THE EU JUDICIAL SYSTEM ESSAYS IN HONOUR OF PERNILLA LINDH 291 (Pascal Cardonnel,
Allan Rosas & Nils Wahl eds, 2012); Thomas Von Danwitz & Katharina Paraschas, " 'SFTI 4UBSU GPS
UIF$IBSUFS'VOEBNFOUBM2VFTUJPOTPOUIF"QQMJDBUJPOPG UIF&VSPQFBO$IBSUFSPG 'VOEBNFOUBM3JHIUT, 35
FORDHAM INTL L.J. 1396 (2012); Koen Lenaerts, &YQMPSJOH UIF -JNJUT PG  UIF &6 $IBSUFS PG  'VOEBNFOUBM
3JHIUT, 8 EUR. CONST. L.REV. 3, 375 (2012).
C-617/10kerberg. On this extensive approach, TFF FH., Jean-Franois Akanji-Komb, "SSUiLFSCFSH
'SBOTTPOuMBQQMJDBUJPOKVSJEJDUJPOOFMMFEFMB$IBSUFFVSPQFOOFEFTESPJUTGPOEBNFOUBVY, 5(191) JOURNAL DE
DROIT EUROPEN 184 (2013).
C-617/10kerberg, 19.

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4.1. Applicability of fundamental rights protected by theEU

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4.2. Applicability of constitutional rights in situations covered by EU


law: testing the resistance of EU law effectiveness
Having considered the applicability of fundamental rights protected by EU law, it may
seem abrupt to turn to the protection granted by national constitutions in situations
submitted to EU law. It is not. As LFSCFSH shows, the two questions are closely connected. In that case, after dealing with the applicability of the Charter, the Court envisaged the possible application of national standards of protection of fundamental rights.
Until now, the Court of Justice has been faithful to the philosophy of 7BO(FOEFO-PPT,
requiring national courts, in case of conflict, to enforce EU law, including obligations
87
88
89
90

*E. 20.
*E 21.
*E 40 of the Opinion.
*E 41 of the Opinion.

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According to those explanations, the requirement to respect fundamental rights


defined in the context of the Union is only binding on the Member States when they
act in the scope of Union law.87 And it is the applicability of European Union law
that determines applicability of the fundamental rights guaranteed by the Charter.88
The line drawn by the Court relies, eventually, on the notion of implementation,
distinguished from a stricter notion of transposition: the Court insists that tax penalties and criminal proceedings at stake, even not adopted in order to USBOTQPTF an EU
directive, are meant to JNQMFNFOU an obligation imposed on the member states by the
Treaty. As a result, the concept of implementation, construed extensively, becomes
the central criterion. Therefore, to answer the question of EU law effects, national
law must scrutinize national law and identify if it fits, or not, within the notion of
implementation.
As compared to the reasoning suggested by Advocate-General Cruz Villaln in his
opinion on the case, the approach followed by the Court of Justice does not provide
much guidance to national courts. The Court of Justice did not accept the idea that
the competence of the Union to assume responsibility for guaranteeing the fundamental rights vis--vis the exercise of public authority by the Member States when
they are implementing Union law must be explained by reference to a specific interest
of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union and that the mere fact that such
an exercise of public authority has its ultimate origin in Union law is not of itself sufficient for a finding that there is a situation involving the implementation of Union
law.89 If the applicability of the Charter had been considered to depend on the presence, or even the leading role, of Union law in national law in each particular case,90
that would have required national courts to assess the intensity of the role of Union
Law in each field. Admittedly, that would not have been an easy test in all cases; but it
would have given national courts a more precise guideline than the solution deriving
from LFSCFSH. In the absence of such a guideline, the effectiveness of EU law, as far as
fundamental rights are concerned, remains very uncertain.

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185

91

92
93

94
95
96

97
98

This concern to integrate the fundamental rights dimension throughout the process of drafting legislation was thoroughly described by the Commission in its Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of Rights, TVQSB note7.
Case C-168/13 Jeremy F., May 30, 2013, unreported.
Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299 of 26 Feb. 2009.
Case C-168/13 Jeremy F., 40.
*E 47.
Case C-399/11 Melloni, Feb. 26, 2013, unreported. On that decision, TFF  FH, Henri Labayle, .BOEBU
EBSSUFVSPQFOFUEFHSEFQSPUFDUJPOEFTESPJUTGPOEBNFOUBVY RVBOEMBDPOBODFTFGBJUBWFVHMF, http://www.
gdr-elsj.eu; Rostane Medhi, 3FUPVS TVS MBSSU .FMMPOJ RVFMRVFT SFYJPOT TVS MFT VTBHFT DPOUSBEJDUPJSFT EV
QSJODJQFEFQSJNBVU, http://www.gdr-elsj.eu (29 March 2013); Fabienne Gazin, .BOEBUEBSSUFVSPQFO
DPPQSBUJPOQPMJDJSFFUKVEJDJBJSFFONBUJSFQOBMF
, 4 REVUE EUROPE COMM. 23 (2013).
Case C-399/11 Melloni, 44.
4FF, in particular, the decisions of the German Constitutional Court: Bundesverfassungsgericht [Federal
Constitutional Court] Jul. 18, 2005, BVerfGe 2236/04 (on the law implementing the framework decision on the European arrest warrant, cited above) and Bundesverfassungsgericht [Federal Constitutional
Court] Mar. 2, 2010, BVerfGe 256/08, 263/08, 586/08 (on the law implementing Directive 2006/24/
EC of the European Parliament and of the Council of Mar. 15, 2006 on the retention of data generated
or processed in connection with the provision of publicly available electronic communications services or
of public communications networks and amending Directive 2002/58/EC, O.J. (L 105)54).

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or coercive measures resulting from EU legislation, even if this was inconsistent with
constitutional rights. This orthodoxy can be justified, in part, by the fact that protection of fundamental rights is supposed to be ensured through integrating fundamental
rights protection in the process of drafting legislation, in order to make sure that those
rights are not violated, where high risks exist that such violations occur (in such fields as
cooperation for criminal matters, or immigration law).91 This is a requirement of both
article 6 TFEU, according to which fundamental rights constitute general principles of
EU law, and article 51 of the Charter of Fundamental Rights, requiring EU institutions
to respect the rights and observe the principles of the Charter.
To take a recent example, such reliance on preventive integration of fundamental
rights was well illustrated in the +FSFNZ' case92 concerning the European arrest warrant, in which the Court recalled that article 1(3) of the Framework Decision93 indicates
that the text shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on
European Union, obligation which in addition, concern[s] all member states, in particular the Member state issuing and executing the arrest warrant.94 It added, that,
as far as article 47 of the Charter and the right to an effective remedy were concerned,
the provisions of the framework decision already organise a procedure that respect
article 47 of the Charter, independently of the modalities chosen by member states to
enforce that framework decision.95 Similarly, in .FMMPOJ,96 the Court mentioned that
the framework decision ensures the protection of the rights of defense by providing an
exhaustive list of the circumstances, in which the execution of a European arrest warrant can be issued in order to enforce a decision rendered JOBCTFOUJB97
However, this is not sufficient to guarantee that constitutional rights are never
affected by EU legislation. On the contrary, the enforcement of EU law has been challenged in national courts on the basis of member states constitutional laws,98 and the

186

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99

100
101
102
103
104

In the case, the conflict is avoided. According to the ECJ: provided that the application of the Framework
Decision is not frustrated . . . it does not prevent a Member State from applying its constitutional rules
relating inter alia to respect for the right to a fair trial (Case C-168/13 Jeremy F., 53).
Case C-399/11 Melloni, 55 and 56.
C-617/10kerberg.
*E 63.
*E 29 (emphasis added).
4FF  FH., concerning the harmonization achieved by Directive 85/374/EEC of July 25, 1985 on the
approximation of the laws, regulations and administrative provisions of the Member States concerning
liability for defective products, OJ L 210, 07/08/1985p.29): ECJ, C-52/00 Commission v.France, 2002
E.C.R. I-03827.

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conflict reaches the Court of Justice, in some instances, through preliminary ruling,
as the recent .FMMPOJ case shows. In +FSFNZ', by contrast, the question is about the
exact requirements stemming from the EU legislation at stake: the possible conflict
between that legislation and the protection of fundamental rights guaranteed by the
Constitution depends on this prior question.99
In .FMMPOJ, the Spanish Constitutional Court suggested that article 53 of the Charter
should be interpreted as giving a general authorization to member states to apply the
standard of protection of fundamental rights guaranteed by their Constitution, when
that standard is higher than that deriving from the Charter and, where necessary,
to give it priority over the application of provisions of EU law.100 The Court refused
this interpretation: the primacy, unity and effectiveness of European Union law, it
considered, shall not be compromised. This language was reiterated in LFSCFSH.101
Applying the higher standard of protection guaranteed by a national constitution was
rejected, namely, because it would cast doubt on the uniformity of the standard of
protection of fundamental rights defined in that framework decision, undermine the
principles of mutual trust and recognition which that decision purports to uphold,
and, therefore, compromise the efficacy of that framework decision.102
Only when some competence remains in the hands of member states, in the process of transposing EU law in national law, as LFSCFSH suggests, can national constitutions step in: where a court of a Member State is called upon to review whether
fundamental rights are complied with by a national provision or measure which, in a
situation XIFSFBDUJPOPG UIF.FNCFS4UBUFTJTOPUFOUJSFMZEFUFSNJOFECZ&VSPQFBO6OJPO
MBX, implements the latter for the purposes of Article 51(1) of the Charter, national
authorities and courts remain free to apply national standards of protection of fundamental rights.103 In .FMMPOJ, this opening could not be exploited because member
states had been deprived of all competence as a result of the uniformization of the
law: the action of member states, in the domain concerned, was entirely determined
by EUlaw.
This touches upon one decisive point, for the purpose of applicability of other sources
of fundamental rights than EU law in a situation covered by EU law: the extent to which
the action of the member states is determined by European Union law. Determining
the degree of harmonization, total or partial, and, in the latter case, the remaining
powers of member states, was already an issue, when national Constitutions were not
concerned.104 But the current resistance to EU law influence, in some constitutional

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187

5. Conclusion: EU law effectiveness reconsidered


Important as it is for European integration, effectiveness of European Union law is not
absolute. And this is not only the outcome of procedural autonomy. As the requirement
of consistent interpretation illustrates, for instance (see Section 3 of this article), there
are hypotheses in which it is accepted that EU law should yield, at least temporarily,
when confronted to the resisting substance of national law. And this does not undermine the presence of EU law in national courts where it is quite clear that not only the
increased domain, but also the evolutive reasoning that characterizes the development
of EU law, call for an extension, rather than a retraction, of EU law influence. Overall, EU
law executive force is contingent on the situation of each national legal system (rules,
actors), and this is a feature of the system of EU law. That is already a reason why effectiveness does not stand as a very strong argument to justify that constitutional protections be set aside, even in cases in which the solution is entirely determined by EUlaw.
At the time of 7BO(FOEFO-PPT, it was probably difficult to imagine that the impact
of EU policies on individual rights and freedoms would become a major concern. Today,
no one contests that the protection of fundamental rights has become a central issue,
especially in the development of the area of freedom, security, and justice.107 In those
fields, the reasoning and principles that were crafted for the achievement of the internal
105

106

107

4FF FH, the decision of the Polish Constitutional Court, Dec. 16, 2011, SK 45/09, in which that court
considered that it had the power to review, on the basis of the Polish Constitution, EU Regulation
44/2001 of Dec. 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, 2001 O.J. (L 012).
This was exactly what happened in the cases decided by the German Constitutional Court,
Bundesverfassungsgericht [Federal Constitutional Court] July 18, 2005, BVerfGe 2236/04.
On this point, TFF Henri Labayle, 3FGPOEFS MFTQBDF EF MJCFSU  EF TDVSJU FU EF KVTUJDF  MB MVNJSF
EF MBSSU 7BO (FOE FO -PPT , JO 50TH ANNIVERSARY OF THE JUDGMENT IN VAN GEND EN LOOS 1963
2013. CONFERENCE PROCEEDINGS, at 197 (CJEU 2013), BWBJMBCMF BU http://curia.europa.eu/jcms/
jcms/P_95693/. For a summary, TFF Henri Labayle, 3FGPOEFS M&-4+  MB MVNJSF EF MB KVSJTQSVEFODF Van
Gend en Loos , Working Paper no. 5 (May 23, 2013), http://www.gdr-elsj.eu/2013/05/29/elsj/
working-paper-n-5-refonder-lelsj-a-la-lumiere-de-la-jurisprudence-van-gend-en-loos/.

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courts, makes it more sensitive than before. Indeed, constitutional courts are not
always keen nowadays to follow the direction of direct effect and supremacy.105 In this
context, clashes can only be avoided when situations are only partially determined by
EU law, and there remains room for constitutional protection.106
Otherwise, the forces that find their origin in 7BO(FOEFO-PPT continue to resist the
change of times. Undeniably, if the solution proposed by the Spanish Constitutional
Court had been accepted, the situation of EU citizens in national courts would have
been, in a number of cases, very different from the one that brought 7BO(FOEFO-PPT
before the Dutch 5BSJFGDPNNJTTJF: in many instances, nationals of member states would
request, and possibly obtain, constitutional protection against coercive measures taken
against them in the course of implementation of EU law. If the Court of Justice accepted
that solution, it would, no doubt, limit, albeit only in the particular field of fundamental
rights protection (and not in general), the effectiveness of European Union law.

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108
109

110

111

Case C-426/11 Alemo-Herron and others, July 18, 2013, unreported.


Directive 2001/23 of March 12, 2001 on the approximation of the laws of the Member States relating
to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of
undertakings or businesses, 2001 O.J. (L 016).
On the interpretation of this article, TFF FH., Armin von Bogdandy & Stephan Schill, 0WFSDPNJOHBCTPMVUF
1SJNBDZ3FTQFDUGPS/BUJPOBM*EFOUJUZVOEFSUIF-JTCPO5SFBUZ, 48 COMMON MKT L.REV. 1417 (2011).
On this idea, TFF Damian Chalmers & Luis Barroso, 8IBU Van Gend en Loos 4UBOET'PS, 12(1) INTL J.CONST.
L. 105 (2014), suggesting that art. 4(2) be granted direct effect.

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market are not always well-suited, although they may apply at the moment. More generally, there is a distinction to be made between the possibility for individuals to obtain
that the interests they draw from EU law are effectively protected in national courts,
and the situation in which individuals are brought to courts and held responsible for
their actions under European law. As these situations becomes more frequent, namely
in relation to the development of EU policies, it becomes urgent to reconsider the effects
of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. The same is true when a situation cannot be
described in terms of reduced protection, but is one in which a European conception of
a fundamental right or freedom opposes, without solid justification, the national conception of the same right. This hypothesis was illustrated in the recent "MFNP)FSSPO
case.108 In that case, the Court based its interpretation of the directive on transfers of
undertakings109 on a particular conception of the freedom to conduct a business laid
down by article 16 of the Charter, which includes, according to the decision, freedom
of contract. This interpretation was preferred to the British conception of contractual
freedom, which would have to allowed enforcement of the terms of a private contract.
To avoid such solutions, judicial discretion, at national courts level, could be a tentative method. By judicial discretion, Ionly mean granting a margin of appreciation to
national courts in cases in which enforcement of EU law impacts fundamental rights
or freedoms. Inspiration can be found, NVUBUJT NVUBOEJT, in the relationships entertained by courts of different legal orders (the European Court of Human Rights and
the Court of Justice of the European Union, for instance), where mutual trust goes
together with some retained sovereignty. But if national courts are allowed to enforce
constitutional rights, this cannot happen without restriction. The disruption to the
basic principles of EU federalism needs to be contained and occur only in cases in
which it is particularly important that national constitutional rights are not called in
question. In this perspective, article 4(2) TEU must be considered:110 it can justify that
national constitutional law prevails,111 and, at the same time, avoid abuses. If, according to article 4(2) TEU, the Union must respect member states national identities,
inherent in their fundamental structures political and constitutional, national courts
should be able to set aside EU law provisions in order to preserve their national identity
whenever it is threatened by the application of EU law. In addition to this condition,
national courts discretion could also be limited by taking into account the need to
ensure that the essential objective pursued by EU law, in the particular field, can still be
fulfilled. Teleological interpretation, a traditional method of interpretation of EU law,
would serve, this time, to circumscribe, not expand, EU jurisdiction.

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JUDGMENT OF 13. 11. 1990 CASE C-106/89

J U D G M E N T OF T H E COURT (Sixth Chamber)


13 November 1990 *

In Case C-106/89,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Juzgado
de Primera Instancia e Instruccin (Court of First Instance and Examining Magistrates' Court) N o 1, Oviedo, Spain, for a preliminary ruling in the proceedings
pending before that court between
Marleasing SA
and
La Comercial Internacional de Alimentacin SA
on the interpretation of Article 11 of the First Council Directive 68/151/EEC of 9
March 1968 on coordination of safeguards which, for the protection of the
interests of members and others, are required by Member States of companies
within the meaning of the second paragraph of Article 58 of the Treaty, with a
view to making such safeguards equivalent throughout the Community (Official
Journal, English Special Edition 1968 (I), p. 41),
T H E COURT (Sixth Chamber),
composed of: G. F. Mancini, President of Chamber, T. F. O'Higgins, M. Dez de
Velasco, C. N. Kakouris and P. J. G. Kapteyn, Judges,
Advocate General: W. van Gerven
Registrar: H. A. Rhi, Principal Administrator,
after considering the written observations submitted on behalf of
Marleasing SA, by Jos Ramn Buzn Ferrer, of the Oviedo Bar,

* Language of the case: Spanish.

I-4156

MARLEASING

the Commission of the European Communities, by its Legal Adviser Antonio


Caeiro and by Daniel Calleja, a member of its Legal Department, acting as Agents,
having regard to the Report for the Hearing and further to the hearing on 6 June
1990,
after hearing the Opinion of the Advocate General delivered at the sitting on 12
July 1990,
gives the following

Judgment

By order of 13 March 1989, which was received at the Court on 3 April 1989, the
Juzgado de Primera Instancia e Instruccin N o 1, Oviedo, referred a question to
the Court pursuant to Article 177 of the EEC Treaty for a preliminary ruling on
the interpretation of Article 11 of Council Directive 68/151/EEC of 9 March 1968
on coordination of safeguards which, for the protection of the interests of
members and others, are required by Member States of companies within the
meaning of the second paragraph of Article 58 of the Treaty, with a view to
making such safeguards equivalent throughout the Community.

Those questions arose in a dispute between Marleasing SA, the plaintiff in the
main proceedings, and a number of defendants including La Comercial Internacional de Alimentacin SA (hereinafter referred to as 'La Comercial'). The latter
was established in the form of a public limited company by three persons,
including Barviesa SA, which contributed its own assets.

It is apparent from the grounds set out in the order for reference that Marleasing's
primary claim, based on Articles 1261 and 1275 of the Spanish Civil Code,
according to which contracts without cause or whose cause is unlawful have no
legal effect, is for a declaration that the founders' contract establishing La
Comercial is void on the ground that the establishment of the company lacked
cause, was a sham transaction and was carried out in order to defraud the
I-4157

JUDGMENT OF 13. 11. 1990 CASE C-106/S9

creditors of Barviesa SA, a co-founder of the defendant company. La Comercial


contended that the action should be dismissed in its entirety on the ground, in
particular, that Article 11 of Directive 68/151, which lists exhaustively the cases in
which the nullity of a company may be ordered, does not include lack of cause
amongst them.

The national court observed that in accordance with Article 395 of the Act
concerning the Conditions of Accession of Spain and the Portuguese Republic to
the European Communities (Official Journal 1985 L 302, p. 23) the Kingdom of
Spain was under an obligation to bring the directive into effect as from the date of
accession, but that that had still not been done at the date of the order for
reference. Taking the view, therefore, that the dispute raised a problem concerning
the interpretation of Community law, the national court referred the following
question to the Court:
'Is Article 11 of Council Directive 68/151/EEC of 9 March 1968, which has not
been implemented in national law, directly applicable so as to preclude a
declaration of nullity of a public limited company on a ground other than those set
out in the said article?'

Reference is made to the Report for the Hearing for a fuller account of the facts
of the case, the course of the procedure and the observations submitted to the
Court, which are mentioned or discussed hereinafter only in so far as is necessary
for the reasoning of the Court.

With regard to the question whether an individual may rely on the directive
against a national law, it should be observed that, as the Court has consistently
held, a directive may not of itself impose obligations on an individual and, consequently, a provision of a directive may not be relied upon as such against such a
person (judgment in Case 152/84 Marshall v Southampton and South-West
Hampshire Area Health Authority [1986] ECR 723).

However, it is apparent from the documents before the Court that the national
court seeks in substance to ascertain whether a national court hearing a case which
falls within the scope of Directive 68/151 is required to interpret its national law in
the light of the wording and the purpose of that directive in order to preclude a
I-4158

MARLEASING

declaration of nullity of a public limited company on a ground other than those


listed in Article 11 of the directive.

In order to reply to that question, it should be observed that, as the Court pointed
out in its judgment in Case 14/83 Von Colson and Kamann v Land
Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and
their duty under Anicie 5 of the Treaty to take all appropriate measures, whether
general or particular, to ensure the fulfilment of that obligation, is binding on all
the authorities of Member States including, for matters within their jurisdiction,
the courts. It follows that, in applying national law, whether the provisions in
question were adopted before or after the directive, the national court called upon
to interpret it is required to do so, as far as possible, in the light of the wording
and the purpose of the directive in order to achieve the result pursued by the latter
and thereby comply with the third paragraph of Article 189 of the Treaty.

It follows that the requirement that national law must be interpreted in conformity
with Article 11 of Directive 68/151 precludes the interpretation of provisions of
national law relating to public limited companies in such a manner that the nullity
of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the directive in question.

10 With regard to the interpretation to be given to Article 11 of the directive, in


particular Article ll(2)(b), it should be observed that that provision prohibits the
laws of the Member States from providing for a judicial declaration of nullity on
grounds other than those exhaustively listed in the directive, amongst which is the
ground that the objects of the company are unlawful or contrary to public policy.

11 According to the Commission, the expression Objects of the company' must be


interpreted as referring exclusively to the objects of the company as described in
the instrument of incorporation or the articles of association. It follows, in the
Commission's view, that a declaration of nullity of a company cannot be made on
the basis of the activity actually pursued by it, for instance defrauding the
founders' creditors.
I - 4159

JUDGMENT OF 13. 11. 1990 CASE C-106/89

12

That argument must be upheld. As is clear from the preamble to Directive 68/151,
its purpose was to limit the cases in which nullity can arise and the retroactive
effect of a declaration of nullity in order to ensure 'certainty in the law as regards
relations between the company and third parties, and also between members' (sixth
recital). Furthermore, the protection of third parties 'must be ensured by provisions
which restrict to the greatest possible extent the grounds on which obligations
entered into in the name of the company are not valid'. It follows, therefore, that
each ground of nullity provided for in Article 11 of the directive must be interpreted strictly. In those circumstances the words Objects of the company' must be
understood as referring to the objects of the company as described in the
instrument of incorporation or the articles of association.

1 3 The answer to the question submitted must therefore be that a national court
hearing a case which falls within the scope of Directive 68/151 is required to
interpret its national law in the light of the wording and the purpose of that
directive in order to preclude a declaration of nullity of a public limited company
on a ground other than those listed in Article 11 of the directive.

Costs
1 4 The costs incurred by the Commission of the European Communities, which has
submitted observations to the Court, are not recoverable. As these proceedings are,
in so far as the parties to the main proceedings are concerned, in the nature of a
step in the action pending before the national court, the decision on costs is a
matter for that court.

On those grounds,

T H E COURT (Sixth Chamber),

in answer to the question referred to it by the Juzgado de Primera Instancia e


Instruccin No 1, Oviedo, by order of 13 March 1989, hereby rules:

A national court hearing a case which falls within the scope of Council Directive
68/151/EEC of 9 March 1968 on coordination of safeguards which, for the
protection of the interests of members and others, are required by Member States
I-4160

MARLEASING

of companies within the meaning of the second paragraph of Article 58 of the


Treaty, with a view to making such safeguards equivalent throughout the
Community, is required to interpret its national law in the light of the wording and
the purpose of that directive in order to preclude a declaration of nullity of a public
limited company on a ground other than those listed in Article 11 of the directive.

Mancini
Diez de Velasco

O'Higgins
Kakouris

Kapteyn

Delivered in open court in Luxembourg on 13 November 1990.

J.-G. Giraud
Registrar

G. F. Mancini
President of the Sixth Chamber

I - 4161

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Official Journal of the European Communities

CHARTER OF FUNDAMENTAL RIGHTS


OF THE EUROPEAN UNION
(2000/C 364/01)

C 364/1

18.12.2000

EN

Official Journal of the European Communities

PROCLAMACI!N SOLEMNE
H"JTIDELIG PROKLAMATION
FEIERLICHE PROKLAMATION
`!"# #`"!
SOLEMN PROCLAMATION
PROCLAMATION SOLENNELLE
FOR!GRA SOLL#NTA
PROCLAMAZIONE SOLENNE
PLECHTIGE AFKONDIGING
PROCLAMAO SOLENE
JUHLALLINEN JULISTUS
H$GTIDLIG PROKLAMATION

C 364/3

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Official Journal of the European Communities

C 364/5

El Parlamento Europeo, el Consejo y la Comisi!n proclaman solemnemente en tanto que Carta de los
Derechos Fundamentales de la Uni!n Europea el texto que figura a continuaci!n.
Europa-Parlamentet, R"det og Kommissionen proklamerer hjtideligt den tekst, der flger nedenfor, som
Den Europ$iske Unions charter om grundl$ggende rettigheder.
Das Europ%ische Parlament, der Rat und die Kommission proklamieren feierlich den nachstehenden Text
als Charta der Grundrechte der Europ%ischen Union.
!" #$ "%"&"'", (" )*&"'" + #("#, -+'.."% #%+/, 0 1/(+ 2*2-3%
*/(% (+0 #,0 %.+0, (" 24*2%" #" ""24.
The European Parliament, the Council and the Commission solemnly proclaim the text below as the
Charter of fundamental rights of the European Union.
Le Parlement europen, le Conseil et la Commission proclament solennellement en tant que Charte des
droits fondamentaux de lUnion europenne le texte repris ci-aprs.
For!gra'onn Parlaimint na hEorpa, an Chomhairle agus an Coimisin go sollnta an tacs th'os mar an
Chairt um Chearta Bunsacha den Aontas Eorpach.
Il Parlamento europeo, il Consiglio e la Commissione proclamano solennemente quale Carta dei diritti
fondamentali dellUnione europea il testo riportato in appresso.
Het Europees Parlement, de Raad en de Commissie kondigen plechtig als Handvest van de grondrechten
van de Europese Unie de hierna opgenomen tekst af.
O Parlamento Europeu, o Conselho e a Comisso proclamam solenemente, enquanto Carta dos Direitos
Fundamentais da Unio Europeia, o texto a seguir transcrito.
Euroopan parlamentti, neuvosto ja komissio juhlallisesti julistavat j%ljemp%n% esitetyn tekstin Euroopan
unionin perusoikeuskirjaksi.
Europaparlamentet, r"det och kommissionen tillk%nnager h(gtidligt denna text s"som stadga om de
grundl%ggande r%ttigheterna i Europeiska unionen.

C 364/6

EN

Official Journal of the European Communities

Hecho en Niza, el siete de diciembre del ao dos mil.


Udf$rdiget i Nice den syvende december to tusind.
Geschehen zu Nizza am siebten Dezember zweitausend.
%2 .(+ 4, .(0 2#(/ 22*&4" -'" 6/-20.
Done at Nice on the seventh day of December in the year two thousand.
Fait ) Nice, le sept dcembre deux mille.
Arna dhanamh i Nice, an seacht l de Nollaig sa bhliain dh mh'le.
Fatto a Nizza, add* sette dicembre duemila.
Gedaan te Nice, de zevende december tweeduizend.
Feito em Nice, em sete de Dezembro de dois mil.
Tehty Nizzassa seitsem%nten% p%iv%n% joulukuuta vuonna kaksituhatta.
Som skedde i Nice den sjunde december tjugohundra.

18.12.2000

18.12.2000

EN

Official Journal of the European Communities

Por el Parlamento Europeo


For Europa-Parlamentet
F+r das Europ%ische Parlament
(" #$ "%"&"'"
For the European Parliament
Pour le Parlement europen
Thar ceann Pharlaimint na hEorpa
Per il Parlamento europeo
Voor het Europees Parlement
Pelo Parlamento Europeu
Euroopan parlamentin puolesta
F(r Europaparlamentet

Por el Consejo de la Uni!n Europea


For R"det for Den Europ$iske Union
F+r den Rat der Europ%ischen Union
(" )*&"'" (+0 #,0 %.+0
For the Council of the European Union
Pour le Conseil de lUnion europenne
Thar ceann Chomhairle an Aontais Eorpaigh
Per il Consiglio dellUnione europea
Voor de Raad van de Europese Unie
Pelo Conselho da Unio Europeia
Euroopan unionin neuvoston puolesta
F(r Europeiska unionens r"d

Por la Comisi!n Europea


For Europa-kommissionen
F+r die Europ%ische Kommission
(+% #, #("#,
For the European Commission
Pour la Commission europenne
Thar ceann an Choimisiin Eorpaigh
Per la Commissione europea
Voor de Europese Commissie
Pela Comisso Europeia
Euroopan komission puolesta
F(r Europeiska kommissionen

C 364/7

C 364/8

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Official Journal of the European Communities

18.12.2000

PREAMBLE
The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful
future based on common values.
Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of
human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule
of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union
and by creating an area of freedom, security and justice.
The Union contributes to the preservation and to the development of these common values while
respecting the diversity of the cultures and traditions of the peoples of Europe as well as the
national identities of the Member States and the organisation of their public authorities at national,
regional and local levels; it seeks to promote balanced and sustainable development and ensures free
movement of persons, goods, services and capital, and the freedom of establishment.
To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in
society, social progress and scientific and technological developments by making those rights more
visible in a Charter.
This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and
the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and
international obligations common to the Member States, the Treaty on European Union, the Community
Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the
Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court
of Justice of the European Communities and of the European Court of Human Rights.
Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human
community and to future generations.
The Union therefore recognises the rights, freedoms and principles set out hereafter.

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C 364/9

CHAPTER I
DIGNITY
Article 1
Human dignity
Human dignity is inviolable. It must be respected and protected.
Article 2
Right to life
1.

Everyone has the right to life.

2.

No one shall be condemned to the death penalty, or executed.


Article 3
Right to the integrity of the person

1.

Everyone has the right to respect for his or her physical and mental integrity.

2.

In the fields of medicine and biology, the following must be respected in particular:

, the free and informed consent of the person concerned, according to the procedures laid down by
law,
, the prohibition of eugenic practices, in particular those aiming at the selection of persons,
, the prohibition on making the human body and its parts as such a source of financial gain,
, the prohibition of the reproductive cloning of human beings.
Article 4
Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5
Prohibition of slavery and forced labour
1.

No one shall be held in slavery or servitude.

2.

No one shall be required to perform forced or compulsory labour.

3.

Trafficking in human beings is prohibited.

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CHAPTER II
FREEDOMS
Article 6
Right to liberty and security
Everyone has the right to liberty and security of person.

Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.

Article 8
Protection of personal data
1.

Everyone has the right to the protection of personal data concerning him or her.

2.
Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to
data which has been collected concerning him or her, and the right to have it rectified.
3.

Compliance with these rules shall be subject to control by an independent authority.

Article 9
Right to marry and right to found a family
The right to marry and the right to found a family shall be guaranteed in accordance with the national
laws governing the exercise of these rights.

Article 10
Freedom of thought, conscience and religion
1.
Everyone has the right to freedom of thought, conscience and religion. This right includes freedom
to change religion or belief and freedom, either alone or in community with others and in public or in
private, to manifest religion or belief, in worship, teaching, practice and observance.
2.
The right to conscientious objection is recognised, in accordance with the national laws governing
the exercise of this right.

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C 364/11

Article 11
Freedom of expression and information
1.
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless
of frontiers.
2.

The freedom and pluralism of the media shall be respected.


Article 12
Freedom of assembly and of association

1.
Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels,
in particular in political, trade union and civic matters, which implies the right of everyone to form and
to join trade unions for the protection of his or her interests.
2.
Political parties at Union level contribute to expressing the political will of the citizens of the
Union.
Article 13
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.
Article 14
Right to education
1.

Everyone has the right to education and to have access to vocational and continuing training.

2.

This right includes the possibility to receive free compulsory education.

3.
The freedom to found educational establishments with due respect for democratic principles and
the right of parents to ensure the education and teaching of their children in conformity with their
religious, philosophical and pedagogical convictions shall be respected, in accordance with the national
laws governing the exercise of such freedom and right.
Article 15
Freedom to choose an occupation and right to engage in work
1.

Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

2.
Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of
establishment and to provide services in any Member State.

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3.
Nationals of third countries who are authorised to work in the territories of the Member States are
entitled to working conditions equivalent to those of citizens of the Union.
Article 16
Freedom to conduct a business
The freedom to conduct a business in accordance with Community law and national laws and practices
is recognised.
Article 17
Right to property
1.
Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired
possessions. No one may be deprived of his or her possessions, except in the public interest and in
the cases and under the conditions provided for by law, subject to fair compensation being paid in good
time for their loss. The use of property may be regulated by law in so far as is necessary for the general
interest.
2.

Intellectual property shall be protected.


Article 18
Right to asylum

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28
July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with
the Treaty establishing the European Community.
Article 19
Protection in the event of removal, expulsion or extradition
1.

Collective expulsions are prohibited.

2.
No one may be removed, expelled or extradited to a State where there is a serious risk that he or
she would be subjected to the death penalty, torture or other inhuman or degrading treatment or
punishment.

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C 364/13

CHAPTER III
EQUALITY
Article 20
Equality before the law
Everyone is equal before the law.
Article 21
Non-discrimination
1.
Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation shall be prohibited.
2.
Within the scope of application of the Treaty establishing the European Community and of the
Treaty on European Union, and without prejudice to the special provisions of those Treaties, any
discrimination on grounds of nationality shall be prohibited.
Article 22
Cultural, religious and linguistic diversity
The Union shall respect cultural, religious and linguistic diversity.
Article 23
Equality between men and women
Equality between men and women must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for
specific advantages in favour of the under-represented sex.
Article 24
The rights of the child
1.
Children shall have the right to such protection and care as is necessary for their well-being. They
may express their views freely. Such views shall be taken into consideration on matters which concern
them in accordance with their age and maturity.
2.
In all actions relating to children, whether taken by public authorities or private institutions, the
childs best interests must be a primary consideration.

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3.
Every child shall have the right to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to his or her interests.
Article 25
The rights of the elderly
The Union recognises and respects the rights of the elderly to lead a life of dignity and independence
and to participate in social and cultural life.
Article 26
Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to benefit from measures
designed to ensure their independence, social and occupational integration and participation in the
life of the community.

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C 364/15

CHAPTER IV
SOLIDARITY
Article 27
Workers right to information and consultation within the undertaking
Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national
laws and practices.

Article 28
Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance with Community law and
national laws and practices, the right to negotiate and conclude collective agreements at the appropriate
levels and, in cases of conflicts of interest, to take collective action to defend their interests, including
strike action.

Article 29
Right of access to placement services
Everyone has the right of access to a free placement service.

Article 30
Protection in the event of unjustified dismissal
Every worker has the right to protection against unjustified dismissal, in accordance with Community
law and national laws and practices.

Article 31
Fair and just working conditions
1.
Every worker has the right to working conditions which respect his or her health, safety and
dignity.
2.
Every worker has the right to limitation of maximum working hours, to daily and weekly rest
periods and to an annual period of paid leave.

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Article 32
Prohibition of child labour and protection of young people at work
The employment of children is prohibited. The minimum age of admission to employment may not be
lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable
to young people and except for limited derogations.
Young people admitted to work must have working conditions appropriate to their age and be protected
against economic exploitation and any work likely to harm their safety, health or physical, mental, moral
or social development or to interfere with their education.

Article 33
Family and professional life
1.

The family shall enjoy legal, economic and social protection.

2.
To reconcile family and professional life, everyone shall have the right to protection from dismissal
for a reason connected with maternity and the right to paid maternity leave and to parental leave
following the birth or adoption of a child.

Article 34
Social security and social assistance
1.
The Union recognises and respects the entitlement to social security benefits and social services
providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and
in the case of loss of employment, in accordance with the rules laid down by Community law and
national laws and practices.
2.
Everyone residing and moving legally within the European Union is entitled to social security
benefits and social advantages in accordance with Community law and national laws and practices.
3.
In order to combat social exclusion and poverty, the Union recognises and respects the right to
social and housing assistance so as to ensure a decent existence for all those who lack sufficient
resources, in accordance with the rules laid down by Community law and national laws and practices.

Article 35
Health care
Everyone has the right of access to preventive health care and the right to benefit from medical
treatment under the conditions established by national laws and practices. A high level of human
health protection shall be ensured in the definition and implementation of all Union policies and
activities.

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Article 36
Access to services of general economic interest
The Union recognises and respects access to services of general economic interest as provided for in
national laws and practices, in accordance with the Treaty establishing the European Community, in
order to promote the social and territorial cohesion of the Union.
Article 37
Environmental protection
A high level of environmental protection and the improvement of the quality of the environment must
be integrated into the policies of the Union and ensured in accordance with the principle of sustainable
development.
Article 38
Consumer protection
Union policies shall ensure a high level of consumer protection.

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18.12.2000

CHAPTER V
CITIZENS RIGHTS
Article 39
Right to vote and to stand as a candidate at elections to the European Parliament
1.
Every citizen of the Union has the right to vote and to stand as a candidate at elections to the
European Parliament in the Member State in which he or she resides, under the same conditions as
nationals of that State.
2.
Members of the European Parliament shall be elected by direct universal suffrage in a free and
secret ballot.

Article 40
Right to vote and to stand as a candidate at municipal elections
Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the
Member State in which he or she resides under the same conditions as nationals of that State.

Article 41
Right to good administration
1.
Every person has the right to have his or her affairs handled impartially, fairly and within a
reasonable time by the institutions and bodies of the Union.
2.

This right includes:

, the right of every person to be heard, before any individual measure which would affect him or her
adversely is taken;
, the right of every person to have access to his or her file, while respecting the legitimate interests of
confidentiality and of professional and business secrecy;
, the obligation of the administration to give reasons for its decisions.
3.
Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles
common to the laws of the Member States.
4.
Every person may write to the institutions of the Union in one of the languages of the Treaties and
must have an answer in the same language.

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Article 42
Right of access to documents
Any citizen of the Union, and any natural or legal person residing or having its registered office in a
Member State, has a right of access to European Parliament, Council and Commission documents.
Article 43
Ombudsman
Any citizen of the Union and any natural or legal person residing or having its registered office in a
Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the
activities of the Community institutions or bodies, with the exception of the Court of Justice and the
Court of First Instance acting in their judicial role.
Article 44
Right to petition
Any citizen of the Union and any natural or legal person residing or having its registered office in a
Member State has the right to petition the European Parliament.
Article 45
Freedom of movement and of residence
1.
Every citizen of the Union has the right to move and reside freely within the territory of the
Member States.
2.
Freedom of movement and residence may be granted, in accordance with the Treaty establishing
the European Community, to nationals of third countries legally resident in the territory of a Member
State.
Article 46
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which
he or she is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that Member State.

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CHAPTER VI
JUSTICE
Article 47
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an
effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal previously established by law. Everyone shall have the possibility of being advised,
defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary
to ensure effective access to justice.
Article 48
Presumption of innocence and right of defence
1.

Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2.

Respect for the rights of the defence of anyone who has been charged shall be guaranteed.
Article 49
Principles of legality and proportionality of criminal offences and penalties

1.
No one shall be held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national law or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the
criminal offence was committed. If, subsequent to the commission of a criminal offence, the law
provides for a lighter penalty, that penalty shall be applicable.
2.
This Article shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles recognised
by the community of nations.
3.

The severity of penalties must not be disproportionate to the criminal offence.


Article 50

Right not to be tried or punished twice in criminal proceedings for the same criminal offence
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he
or she has already been finally acquitted or convicted within the Union in accordance with the law.

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CHAPTER VII
GENERAL PROVISIONS

Article 51
Scope
1.
The provisions of this Charter are addressed to the institutions and bodies of the Union with due
regard for the principle of subsidiarity and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers.

2.
This Charter does not establish any new power or task for the Community or the Union, or
modify powers and tasks defined by the Treaties.

Article 52
Scope of guaranteed rights
1.
Any limitation on the exercise of the rights and freedoms recognised by this Charter must be
provided for by law and respect the essence of those rights and freedoms. Subject to the principle of
proportionality, limitations may be made only if they are necessary and genuinely meet objectives of
general interest recognised by the Union or the need to protect the rights and freedoms of others.

2.
Rights recognised by this Charter which are based on the Community Treaties or the Treaty on
European Union shall be exercised under the conditions and within the limits defined by those Treaties.

3.
In so far as this Charter contains rights which correspond to rights guaranteed by the Convention
for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights
shall be the same as those laid down by the said Convention. This provision shall not prevent Union law
providing more extensive protection.

Article 53
Level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and
fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member
States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States constitutions.

C 364/22

EN

Official Journal of the European Communities

18.12.2000

Article 54
Prohibition of abuse of rights
Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform
any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their
limitation to a greater extent than is provided for herein.

C 114/12

FR

Journal officiel de lUnion europenne

Parties dans la procdure au principal

Parties dans la procdure au principal

Partie requrante: ProRail NV

Procdure pnale contre: Stefano Melloni.

Parties dfenderesses: Xpedys NV, DB Schenker Rail Nederland


NV, Nationale Maatschappij der Belgische Spoorwegen NV,
FAG Kugelfischer GmbH

Autre partie: Ministerio Fiscal

20.4.2013

Objet
Demande de dcision prjudicielle Hof van Cassatie van
Belgi Interprtation des art. 1er et 17 du rglement (CE)
no 1206/2001 du Conseil, du 28 mai 2001, relatif la coopra
tion entre les juridictions des tats membres dans le domaine de
l'obtention des preuves en matire civile ou commerciale (JO
L 174, p. 1) et de l'art. 33, par. 1, du rglement (CE)
no 44/2001 du Conseil, du 22 dcembre 2000, concernant la
comptence judiciaire, la reconnaissance et l'excution des dci
sions en matire civile et commerciale (Bruxelles I) (JO 2001,
L 12, p. 1) Excution directe de l'acte d'instruction par la
juridiction requrante Dsignation d'un expert et octroi
celui-ci, par les juridictions d'un tat membre, d'une mission
devant se drouler partiellement sur le territoire des juridictions
en cause et partiellement sur le territoire d'un autre tat
membre Application obligatoire ou non du mcanisme
prvu l'art. 17 du rglement no 1206/2001
Dispositif
Les articles 1er, paragraphe 1, sous b), et 17 du rglement (CE)
no 1206/2001 du Conseil, du 28 mai 2001, relatif la coopration
entre les juridictions des tats membres dans le domaine de lobtention
des preuves en matire civile ou commerciale, doivent tre interprts en
ce sens que la juridiction dun tat membre, qui souhaite quun acte
dinstruction confi un expert soit effectu sur le territoire dun autre
tat membre, nest pas ncessairement tenue de recourir au moyen
dobtention des preuves prvu par ces dispositions afin de pouvoir
ordonner cet acte dinstruction.
(1) JO C 269 du 10.09.2011

Arrt de la Cour (Grande chambre) du 26 fvrier 2013


(demande de dcision prjudicielle du Tribunal
Constitucional Madrid Espagne) procdure pnale
contre Stefano Melloni

Objet
Demande de dcision prjudicielle Tribunal Constitucional
Madrid Interprtation de l'art. 4bis de la dcision-cadre
2002/584/JAI du Conseil, du 13 juin 2002, relative au
mandat d'arrt europen et aux procdures de remise entre
tats membres (JO L 190, p. 1), telle que modifie par la
dcision-cadre 2009/299/JAI du Conseil, du 26 fvrier 2009,
portant modification des dcisions-cadres 2002/584/JAI,
2005/214/JAI, 2006/783/JAI, 2008/909/JAI et 2008/947/JAI,
renforant les droits procduraux des personnes et favorisant
l'application du principe de reconnaissance mutuelle aux dci
sions rendues en l'absence de la personne concerne lors du
procs (JO L 81, p. 24) et des art. 47, 48 et 53 de la charte
des droits fondamentaux de l'Union europenne Dcisions
rendues l'issue d'un procs auquel l'intress n'a pas comparu
en personne Excution d'une peine prononce par dfaut
Possibilit de rvision du jugement

Dispositif
1) Larticle 4 bis, paragraphe 1, de la dcision-cadre 2002/584/JAI
du Conseil, du 13 juin 2002, relative au mandat darrt europen
et aux procdures de remise entre tats membres, telle que modifie
par la dcision-cadre 2009/299/JAI du Conseil, du 26 fvrier
2009, doit tre interprt en ce sens quil soppose ce que
lautorit judiciaire dexcution, dans les hypothses indiques
cette disposition, subordonne lexcution dun mandat darrt euro
pen dlivr aux fins de lexcution dune peine la condition que
la condamnation prononce par dfaut puisse tre rvise dans
ltat membre dmission.

2) Larticle 4 bis, paragraphe 1, de la dcision-cadre 2002/584, telle


que modifie par la dcision-cadre 2009/299, est compatible avec
les exigences dcoulant des articles 47 et 48, paragraphe 2, de la
charte des droits fondamentaux de lUnion europenne.

(Affaire C-399/11) (1)


(Coopration policire et judiciaire en matire pnale
Mandat darrt europen Procdures de remise entre
tats membres Dcisions rendues lissue dun procs
auquel lintress na pas comparu en personne Excution
dune peine prononce par dfaut Possibilit de rvision du
jugement)
(2013/C 114/16)

3) Larticle 53 de la charte des droits fondamentaux de lUnion


europenne doit tre interprt en ce sens quil ne permet pas
un tat membre de subordonner la remise dune personne
condamne par dfaut la condition que la condamnation
puisse tre rvise dans ltat membre dmission, afin dviter
une atteinte au droit un procs quitable et aux droits de la
dfense garantis par sa constitution.

Langue de procdure: lespagnol


Juridiction de renvoi
Tribunal Constitucional Madrid

(1) JO C 290 du 01.10.2011

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JUDGMENT OF THE COURT (Grand Chamber)


26 February 2013 (*)

(Charter of Fundamental Rights of the European Union Field of application Article 51


Implementation of European Union law Punishment of conduct prejudicial to own
resources of the European Union Article 50 Ne bis in idem principle National system
involving two separate sets of proceedings, administrative and criminal, to punish the same
wrongful conduct Compatibility)

In Case C617/10,
REQUEST for a preliminary ruling under Article 267 TFEU from the Haparanda tingsrtt
(Sweden), made by decision of 23 December 2010, received at the Court on 27 December
2010, in the proceedings
klagaren
v
Hans kerberg Fransson,
THE COURT (Grand Chamber),
composed of V. Skouris, President, K. Lenaerts, Vice-President, A. Tizzano, M. Ile!i",
G. Arestis, J. Malenovsk#, Presidents of Chambers, A. Borg Barthet, J.C. Bonichot,
C. Toader, J.-J. Kasel and M. Safjan (Rapporteur), Judges,
Advocate General: P. Cruz Villaln,
Registrar: C. Strmholm, Administrator,
having regard to the written procedure and further to the hearing on 24 January 2012,
after considering the observations submitted on behalf of:

Mr kerberg Fransson, by J. Sterner, advokat, and U. Bernitz, professor,

the Swedish Government, by A. Falk and S. Johannesson, acting as Agents,

the Czech Government, by M. Smolek and J. Vl"il, acting as Agents,

the Danish Government, by C. Vang, acting as Agent,

the German Government, by T. Henze, acting as Agent,

Ireland, by D. OHagan, acting as Agent, and M. McDowell SC,

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the Greek Government, by K. Paraskevopoulou and Z. Khatzipavlou, acting as

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Agents,

the French Government, by N. Rouam, acting as Agent,

the Netherlands Government, by C. Wissels and J. Langer, acting as Agents,

the Austrian Government, by C. Pesendorfer, acting as Agent,

the European Commission, by R. Lyal and J. Enegren, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 12 June 2012,
gives the following
Judgment
1

This request for a preliminary ruling concerns the interpretation of the ne bis in idem
principle in European Union law.

The request has been made in the context of a dispute between the klagaren (Public
Prosecutors Office) and Mr kerberg Fransson concerning proceedings brought by the
Public Prosecutors Office for serious tax offences.
Legal context
European Convention for the Protection of Human Rights and Fundamental Freedoms

In Protocol No 7 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, which was signed in Strasbourg on 22 November 1984 (Protocol
No 7 to the ECHR), Article 4, headed Right not to be tried or punished twice, provides as
follows:
1.
No one shall be liable to be tried or punished again in criminal proceedings under the
jurisdiction of the same State for an offence for which he has already been finally acquitted
or convicted in accordance with the law and penal procedure of that State.
2.
The provisions of the preceding paragraph shall not prevent the reopening of the case
in accordance with the law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental defect in the previous
proceedings, which could affect the outcome of the case.
3.
No derogation from this Article shall be made under Article 15 of the [European
Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome
on 4 November 1950; the ECHR].
European Union law
Charter of Fundamental Rights of the European Union

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Article 50 of the Charter of Fundamental Rights of the European Union (the Charter),
which is headed Right not to be tried or punished twice in criminal proceedings for the
same criminal offence, reads as follows:
No one shall be liable to be tried or punished again in criminal proceedings for an offence
for which he or she has already been finally acquitted or convicted within the Union in
accordance with the law.

Article 51 defines the Charters field of application in the following terms:


1.
The provisions of this Charter are addressed to the institutions, bodies, offices and
agencies of the Union with due regard for the principle of subsidiarity and to the Member
States only when they are implementing Union law. They shall therefore respect the rights,
observe the principles and promote the application thereof in accordance with their
respective powers and respecting the limits of the powers of the Union as conferred on it in
the Treaties.
2.
The Charter does not extend the field of application of Union law beyond the powers
of the Union or establish any new power or task for the Union, or modify powers and tasks
as defined in the Treaties.
Sixth Directive 77/388/EEC

Article 22 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of


the laws of the Member States relating to turnover taxes Common system of value added
tax: uniform basis of assessment (OJ 1977 L 145, p. 1; the Sixth Directive), in the version
resulting from Article 28h thereof, states:
...
4.

(a)

Every taxable person shall submit a return by a deadline to be determined by


Member States. ...

...
8.
Member States may impose other obligations which they deem necessary for the
correct collection of the tax and for the prevention of evasion
...
Swedish law
7

Paragraph 2 of Law 1971:69 on tax offences (skattebrottslagen (1971:69); the


skattebrottslagen) is worded as follows:
Any person who intentionally provides false information to the authorities, other than
orally, or fails to submit to the authorities declarations, statements of income or other
required information and thereby creates the risk that tax will be withheld from the
community or will be wrongly credited or repaid to him or a third party shall be sentenced to
a maximum of two years imprisonment for tax offences.

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Paragraph 4 of the skattebrottslagen states:


If an offence within the meaning of Paragraph 2 is to be regarded as serious, the sentence
for such a tax offence shall be a minimum of six months imprisonment and a maximum of
six years.
In determining whether the offence is serious, particular regard shall be had to whether it
relates to very large amounts, whether the perpetrator used false documents or misleading
accounts or whether the conduct formed part of a criminal activity which was committed
systematically or on a large scale or was otherwise particularly grave.

Law 1990:324 on tax assessment (taxeringslagen (1990:324); the taxeringslagen)


provides, in Paragraph 1 of Chapter 5:
If, during the procedure, the taxable person has provided false information, other than
orally, for the purposes of the tax assessment, a special charge (tax surcharge) shall be
levied. The same shall apply if the taxable person has provided such information in legal
proceedings relating to taxation and the information has not been accepted following a
substantive examination.
Information shall be regarded as false if it is clear that information provided by the taxable
person is inaccurate or that the taxable person has omitted information for the purposes of
the tax assessment which he was required to provide. However, information shall not be
regarded as false if the information, together with other information provided, constitutes a
sufficient basis for a correct decision. Information also shall not be regarded as false if the
information is so unreasonable that it manifestly cannot form the basis for a decision.

10

Paragraph 4 of Chapter 5 of the taxeringslagen states:


If false information has been provided, the tax surcharge shall be 40% of the tax referred to
in points 1 to 5 of the first subparagraph of Paragraph 1 of Chapter 1 which, if the false
information had been accepted, would not have been charged to the taxable person or his
spouse. With regard to value added tax, the tax surcharge shall be 20% of the tax which
would have been wrongly credited to the taxable person.
The tax surcharge shall be calculated at 10% or, with regard to value added tax, 5% where
the false information was corrected or could have been corrected with the aid of confirming
documents which are normally available to the Skatteverket [(Tax Board)] and which were
available to the Skatteverket before the end of November of the tax year.

11

Paragraph 14 of Chapter 5 of the taxeringslagen states:


The taxable person shall be exempted wholly or partially from special charges if errors or
omissions become evident which are excusable or if it would be otherwise unreasonable to
levy the charge at the full amount. If the taxable person is exempted partially from the
charge, it shall be reduced to a half or a quarter.
...
In assessing whether it would be otherwise unreasonable to levy the charge at the full
amount, particular regard shall be had to whether:

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...
3.
errors or omissions have also resulted in the taxable person becoming liable for
offences under the skattebrottslagen or becoming the subject of forfeiture of proceeds of
criminal activity within the meaning of Paragraph 1b of Chapter 36 of the Criminal Code
(brottsbalken).
The dispute in the main proceedings and the questions referred for a preliminary
ruling
12

Mr kerberg Fransson was summoned to appear before the Haparanda tingsrtt (Haparanda
District Court) on 9 June 2009, in particular on charges of serious tax offences. He was
accused of having provided, in his tax returns for 2004 and 2005, false information which
exposed the national exchequer to a loss of revenue linked to the levying of income tax and
value added tax (VAT), amounting to SEK 319 143 for 2004, of which SEK 60 000 was in
respect of VAT, and to SEK 307 633 for 2005, of which SEK 87 550 was in respect of VAT.
Mr kerberg Fransson was also prosecuted for failing to declare employers contributions
for the accounting periods from October 2004 and October 2005, which exposed the social
security bodies to a loss of revenue amounting to SEK 35 690 and SEK 35 862 respectively.
According to the indictment, the offences were to be regarded as serious, first, because they
related to very large amounts and, second, because they formed part of a criminal activity
committed systematically on a large scale.

13

By decision of 24 May 2007, the Skatteverket had ordered Mr kerberg Fransson to pay,
for the 2004 tax year, a tax surcharge of SEK 35 542 in respect of income from his economic
activity, of SEK 4 872 in respect of VAT and of SEK 7 138 in respect of employers
contributions. By the same decision it had also imposed for the 2005 tax year a tax surcharge
of SEK 54 240 in respect of income from his economic activity, of SEK 3 255 in respect of
VAT and of SEK 7 172 in respect of employers contributions. Interest was payable on those
penalties. Proceedings challenging the penalties were not brought before the administrative
courts, the period prescribed for this purpose expiring on 31 December 2010 in relation to
the 2004 tax year and on 31 December 2011 in relation to the 2005 tax year. The decision
imposing the penalties was based on the same acts of providing false information as those
relied upon by the Public Prosecutors Office in the criminal proceedings.

14

Before the referring court, the question arises as to whether the charges brought against
Mr kerberg Fransson must be dismissed on the ground that he has already been punished
for the same acts in other proceedings, as the prohibition on being punished twice laid down
by Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter would be infringed.

15

It is in those circumstances that the Haparanda tingsrtt decided to stay proceedings and
refer the following questions to the Court for a preliminary ruling:
1.

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Under Swedish law there must be clear support in the [ECHR] or the case-law of the
European Court of Human Rights for a national court to be able to disapply national
provisions which may be suspected of infringing the ne bis in idem principle under
Article 4 of Protocol No 7 to the ECHR and may also therefore be suspected of
infringing Article 50 of the [Charter]. Is such a condition under national law for
disapplying national provisions compatible with European Union law and in particular

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its general principles, including the primacy and direct effect of European Union law?
2.

Does the admissibility of a charge of tax offences come under the ne bis in idem
principle under Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter
where a certain financial penalty (tax surcharge) was previously imposed on the
defendant in administrative proceedings by reason of the same act of providing false
information?

3.

Is the answer to Question 2 affected by the fact that there must be coordination of these
sanctions in such a way that ordinary courts are able to reduce the penalty in the
criminal proceedings because a tax surcharge has also been imposed on the defendant
by reason of the same act of providing false information?

4.

Under certain circumstances it may be permitted, within the scope of the ne bis in idem
principle , to order further sanctions in fresh proceedings in respect of the same
conduct which was examined and led to a decision to impose sanctions on the
individual. If Question 2 is answered in the affirmative, are the conditions under the ne
bis in idem principle for the imposition of several sanctions in separate proceedings
satisfied where in the later proceedings there is an examination of the circumstances of
the case which is fresh and independent of the earlier proceedings?

5.

The Swedish system of imposing tax surcharges and examining liability for tax
offences in separate proceedings is motivated by a number of reasons of general
interest If Question 2 is answered in the affirmative, is a system like the Swedish
one compatible with the ne bis in idem principle when it would be possible to establish
a system which would not come under the ne bis in idem principle without it being
necessary to refrain from either imposing tax surcharges or ruling on liability for tax
offences by, if liability for tax offences is relevant, transferring the decision on the
imposition of tax surcharges from the Skatteverket and, where appropriate,
administrative courts to ordinary courts in connection with their examination of the
charge of tax offences?

Jurisdiction of the Court

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16

The Swedish, Czech and Danish Governments, Ireland, the Netherlands Government and
the European Commission dispute the admissibility of the questions referred for a
preliminary ruling. In their submission, the Court would have jurisdiction to answer them
only if the tax penalties imposed on Mr kerberg Fransson and the criminal proceedings
brought against him that are the subject-matter of the main proceedings arose from
implementation of European Union law. However, that is not so in the case of either the
national legislation on whose basis the tax penalties were ordered to be paid or the national
legislation upon which the criminal proceedings are founded. In accordance with
Article 51(1) of the Charter, those penalties and proceedings therefore do not come under the
ne bis in idem principle secured by Article 50 of the Charter.

17

It is to be recalled in respect of those submissions that the Charters field of application so


far as concerns action of the Member States is defined in Article 51(1) thereof, according to
which the provisions of the Charter are addressed to the Member States only when they are
implementing European Union law.

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18

That article of the Charter thus confirms the Courts case-law relating to the extent to which
actions of the Member States must comply with the requirements flowing from the
fundamental rights guaranteed in the legal order of the European Union.

19

The Courts settled case-law indeed states, in essence, that the fundamental rights
guaranteed in the legal order of the European Union are applicable in all situations governed
by European Union law, but not outside such situations. In this respect the Court has already
observed that it has no power to examine the compatibility with the Charter of national
legislation lying outside the scope of European Union law. On the other hand, if such
legislation falls within the scope of European Union law, the Court, when requested to give a
preliminary ruling, must provide all the guidance as to interpretation needed in order for the
national court to determine whether that legislation is compatible with the fundamental
rights the observance of which the Court ensures (see inter alia, to this effect, Case C260/89
ERT [1991] I2925, paragraph 42; Case C299/95 Kremzow [1997] ECR I2629, paragraph
15; Case C309/96 Annibaldi [2007] ECR I7493, paragraph 13; Case C94/00
Roquette Frres [2002] ECR I9011, paragraph 25; Case C349/07 Soprop [2008] ECR
I10369, paragraph 34; Case C256/11 Dereci and Others [2011] ECR I11315, paragraph
72; and Case C27/11 Vinkov [2012] ECR, paragraph 58).

20

That definition of the field of application of the fundamental rights of the European Union is
borne out by the explanations relating to Article 51 of the Charter, which, in accordance with
the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken
into consideration for the purpose of interpreting it (see, to this effect, Case C279/09 DEB
[2010] ECR I13849, paragraph 32). According to those explanations, the requirement to
respect fundamental rights defined in the context of the Union is only binding on the
Member States when they act in the scope of Union law.

21

Since the fundamental rights guaranteed by the Charter must therefore be complied with
where national legislation falls within the scope of European Union law, situations cannot
exist which are covered in that way by European Union law without those fundamental
rights being applicable. The applicability of European Union law entails applicability of the
fundamental rights guaranteed by the Charter.

22

Where, on the other hand, a legal situation does not come within the scope of European
Union law, the Court does not have jurisdiction to rule on it and any provisions of the
Charter relied upon cannot, of themselves, form the basis for such jurisdiction (see, to this
effect, the order in Case C466/11 Curr and Others [2012] ECR, paragraph 26).

23

These considerations correspond to those underlying Article 6(1) TEU, according to which
the provisions of the Charter are not to extend in any way the competences of the European
Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof,
does not extend the field of application of European Union law beyond the powers of the
European Union or establish any new power or task for the European Union, or modify
powers and tasks as defined in the Treaties (see Dereci and Others, paragraph 71).

24

In the case in point, it is to be noted at the outset that the tax penalties and criminal
proceedings to which Mr kerberg Fransson has been or is subject are connected in part to
breaches of his obligations to declare VAT.

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25

In relation to VAT, it follows, first, from Articles 2, 250(1) and 273 of Council Directive
2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006
L 347, p. 1), which reproduce inter alia the provisions of Article 2 of the Sixth Directive and
of Article 22(4) and (8) of that directive in the version resulting from Article 28h thereof,
and second, from Article 4(3) TEU that every Member State is under an obligation to take
all legislative and administrative measures appropriate for ensuring collection of all the VAT
due on its territory and for preventing evasion (see Case C132/06 Commission v Italy
[2008] ECR I5457, paragraphs 37 and 46).

26

Furthermore, Article 325 TFEU obliges the Member States to counter illegal activities
affecting the financial interests of the European Union through effective deterrent measures
and, in particular, obliges them to take the same measures to counter fraud affecting the
financial interests of the European Union as they take to counter fraud affecting their own
interests (see, to this effect, Case C367/09 SGS Belgium and Others [2010] ECR I10761,
paragraphs 40 to 42). Given that the European Unions own resources include, as provided
in Article 2(1) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of
the European Communities own resources (OJ 2007 L 163, p. 17), revenue from application
of a uniform rate to the harmonised VAT assessment bases determined according to
European Union rules, there is thus a direct link between the collection of VAT revenue in
compliance with the European Union law applicable and the availability to the European
Union budget of the corresponding VAT resources, since any lacuna in the collection of the
first potentially causes a reduction in the second (see, to this effect, Case C539/09
Commission v Germany [2011] ECR I11235, paragraph 72).

27

It follows that tax penalties and criminal proceedings for tax evasion, such as those to which
the defendant in the main proceedings has been or is subject because the information
concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1)
and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of
Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1)
of the Charter.

28

The fact that the national legislation upon which those tax penalties and criminal
proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call
that conclusion into question, since its application is designed to penalise an infringement of
that directive and is therefore intended to implement the obligation imposed on the Member
States by the Treaty to impose effective penalties for conduct prejudicial to the financial
interests of the European Union.

29

That said, where a court of a Member State is called upon to review whether fundamental
rights are complied with by a national provision or measure which, in a situation where
action of the Member States is not entirely determined by European Union law, implements
the latter for the purposes of Article 51(1) of the Charter, national authorities and courts
remain free to apply national standards of protection of fundamental rights, provided that the
level of protection provided for by the Charter, as interpreted by the Court, and the primacy,
unity and effectiveness of European Union law are not thereby compromised (see, in relation
to the latter aspect, Case C399/11 Melloni [2013] ECR, paragraph 60).

30

For this purpose, where national courts find it necessary to interpret the Charter they may,
and in some cases must, make a reference to the Court of Justice for a preliminary ruling

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under Article 267 TFEU.


31

It follows from the foregoing considerations that the Court has jurisdiction to answer the
questions referred and to provide all the guidance as to interpretation needed in order for the
referring court to determine whether the national legislation is compatible with the ne bis in
idem principle laid down in Article 50 of the Charter.
Consideration of the questions referred
Questions 2, 3 and 4

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32

By these questions, to which it is appropriate to give a joint reply, the Haparanda tingsrtt
asks the Court, in essence, whether the ne bis in idem principle laid down in Article 50 of the
Charter should be interpreted as precluding criminal proceedings for tax evasion from being
brought against a defendant where a tax penalty has already been imposed upon him for the
same acts of providing false information.

33

Application of the ne bis in idem principle laid down in Article 50 of the Charter to a
prosecution for tax evasion such as that which is the subject of the main proceedings
presupposes that the measures which have already been adopted against the defendant by
means of a decision that has become final are of a criminal nature.

34

In this connection, it is to be noted first of all that Article 50 of the Charter does not
preclude a Member State from imposing, for the same acts of non-compliance with
declaration obligations in the field of VAT, a combination of tax penalties and criminal
penalties. In order to ensure that all VAT revenue is collected and, in so doing, that the
financial interests of the European Union are protected, the Member States have freedom to
choose the applicable penalties (see, to this effect, Case 68/88 Commission v Greece [1989]
ECR 2965, paragraph 24; Case C213/99 de Andrade [2000] ECR I11083, paragraph 19;
and Case C91/02 Hannl-Hofstetter [2003] ECR I12077, paragraph 17). These penalties
may therefore take the form of administrative penalties, criminal penalties or a combination
of the two. It is only if the tax penalty is criminal in nature for the purposes of Article 50 of
the Charter and has become final that that provision precludes criminal proceedings in
respect of the same acts from being brought against the same person.

35

Next, three criteria are relevant for the purpose of assessing whether tax penalties are
criminal in nature. The first criterion is the legal classification of the offence under national
law, the second is the very nature of the offence, and the third is the nature and degree of
severity of the penalty that the person concerned is liable to incur (Case C489/10 Bonda
[2012] ECR, paragraph 37).

36

It is for the referring court to determine, in the light of those criteria, whether the combining
of tax penalties and criminal penalties that is provided for by national law should be
examined in relation to the national standards as referred to in paragraph 29 of the present
judgment, which could lead it, as the case may be, to regard their combination as contrary to
those standards, as long as the remaining penalties are effective, proportionate and
dissuasive (see, to this effect, inter alia Commission v Greece, paragraph 24; Case C326/88
Hansen [1990] ECR I2911, paragraph 17; Case C167/01 Inspire Art [2003] ECR I10155,
paragraph 62; Case C230/01 Penycoed [2004] ECR I937, paragraph 36; and Joined Cases
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C387/02, C391/02 and C403/02 Berlusconi and Others [2005] ECR I3565 paragraph 65).
37

It follows from the foregoing considerations that the answer to the second, third and fourth
questions is that the ne bis in idem principle laid down in Article 50 of the Charter does not
preclude a Member State from imposing successively, for the same acts of non-compliance
with declaration obligations in the field of VAT, a tax penalty and a criminal penalty in so far
as the first penalty is not criminal in nature, a matter which is for the national court to
determine.
Question 5

38

By its fifth question, the Haparanda tingsrtt asks the Court, in essence, whether national
legislation which allows the same court to impose tax penalties in combination with criminal
penalties in the event of tax evasion is compatible with the ne bis in idem principle
guaranteed by Article 50 of the Charter.

39

It should be recalled at the outset that, in proceedings under Article 267 TFEU, it is solely
for the national court before which the dispute has been brought, and which must assume
responsibility for the subsequent judicial decision, to determine, in the light of the particular
circumstances of the case, both the need for a preliminary ruling in order to enable it to
deliver judgment and the relevance of the questions which it submits to the Court.
Consequently, where the questions submitted concern the interpretation of European Union
law, the Court is in principle bound to give a ruling (see, inter alia, Joined Cases C78/08 to
C80/08 Paint Graphos and Others [2011] ECR I7611, paragraph 30 and the case-law
cited).

40

The presumption that questions referred by national courts for a preliminary ruling are
relevant may be rebutted only in exceptional cases, where it is quite obvious that the
interpretation of European Union law that is sought bears no relation to the actual facts of
the main action or its purpose, where the problem is hypothetical, or where the Court does
not have before it the factual or legal material necessary to give a useful answer to the
questions submitted to it (see, to this effect, inter alia Paint Graphos, paragraph 31 and the
case-law cited).

41

Here, it is apparent from the order for reference that the national legislation to which the
Haparanda tingsrtt makes reference is not the legislation applicable to the dispute in the
main proceedings and currently does not exist in Swedish law.

42

The fifth question must therefore be declared inadmissible, as the function entrusted to the
Court within the framework of Article 267 TFEU is to contribute to the administration of
justice in the Member States and not to deliver advisory opinions on general or hypothetical
questions (see, inter alia, Paint Graphos, paragraph 32 and the case-law cited)
Question 1

43

10 sur 12

By its first question, the Haparanda tingsrtt asks the Court, in essence, whether a national
judicial practice is compatible with European Union law if it makes the obligation for a
national court to disapply any provision contrary to a fundamental right guaranteed by the
ECHR and by the Charter conditional upon that infringement being clear from the
instruments concerned or the case-law relating to them.

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44

As regards, first, the conclusions to be drawn by a national court from a conflict between
national law and the ECHR, it is to be remembered that whilst, as Article 6(3) TEU
confirms, fundamental rights recognised by the ECHR constitute general principles of the
European Unions law and whilst Article 52(3) of the Charter requires rights contained in the
Charter which correspond to rights guaranteed by the ECHR to be given the same meaning
and scope as those laid down by the ECHR, the latter does not constitute, as long as the
European Union has not acceded to it, a legal instrument which has been formally
incorporated into European Union law. Consequently, European Union law does not govern
the relations between the ECHR and the legal systems of the Member States, nor does it
determine the conclusions to be drawn by a national court in the event of conflict between
the rights guaranteed by that convention and a rule of national law (see, to this effect, Case
C571/10 Kamberaj [2012] ECR, paragraph 62).

45

As regards, next, the conclusions to be drawn by a national court from a conflict between
provisions of domestic law and rights guaranteed by the Charter, it is settled case-law that a
national court which is called upon, within the exercise of its jurisdiction, to apply
provisions of European Union law is under a duty to give full effect to those provisions, if
necessary refusing of its own motion to apply any conflicting provision of national
legislation, even if adopted subsequently, and it is not necessary for the court to request or
await the prior setting aside of such a provision by legislative or other constitutional means
(Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 24; Case C314/08 Filipiak
[2009] ECR I11049, paragraph 81; and Joined Cases C188/10 and C189/10 Melki and
Abdeli [2010] ECR I5667, paragraph 43).

46

Any provision of a national legal system and any legislative, administrative or judicial
practice which might impair the effectiveness of European Union law by withholding from
the national court having jurisdiction to apply such law the power to do everything necessary
at the moment of its application to set aside national legislative provisions which might
prevent European Union rules from having full force and effect are incompatible with those
requirements, which are the very essence of European Union law (Melki and Abdeli,
paragraph 44 and the caselaw cited).

47

Furthermore, in accordance with Article 267 TFEU, a national court hearing a case
concerning European Union law the meaning or scope of which is not clear to it may or, in
certain circumstances, must refer to the Court questions on the interpretation of the provision
of European Union law at issue (see, to this effect, Case 283/81 Cilfit and Others [1982]
ECR 3415).

48

It follows that European Union law precludes a judicial practice which makes the obligation
for a national court to disapply any provision contrary to a fundamental right guaranteed by
the Charter conditional upon that infringement being clear from the text of the Charter or the
case-law relating to it, since it withholds from the national court the power to assess fully,
with, as the case may be, the cooperation of the Court of Justice, whether that provision is
compatible with the Charter.

49

In the light of the foregoing considerations, the answer to the first question is:

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European Union law does not govern the relations between the ECHR and the legal
systems of the Member States, nor does it determine the conclusions to be drawn by a

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national court in the event of conflict between the rights guaranteed by that convention
and a rule of national law;

European Union law precludes a judicial practice which makes the obligation for a
national court to disapply any provision contrary to a fundamental right guaranteed by
the Charter conditional upon that infringement being clear from the text of the Charter
or the case-law relating to it, since it withholds from the national court the power to
assess fully, with, as the case may be, the cooperation of the Court of Justice, whether
that provision is compatible with the Charter.

Costs
50

Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the referring court, the decision on costs is a matter for that court. Costs
incurred in submitting observations to the Court, other than the costs of those parties, are not
recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1.

The ne bis in idem principle laid down in Article 50 of the Charter of


Fundamental Rights of the European Union does not preclude a Member State
from imposing successively, for the same acts of noncompliance with declaration
obligations in the field of value added tax, a tax penalty and a criminal penalty in
so far as the first penalty is not criminal in nature, a matter which is for the
national court to determine.

2.

European Union law does not govern the relations between the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
signed in Rome on 4 November 1950, and the legal systems of the Member States,
nor does it determine the conclusions to be drawn by a national court in the event
of conflict between the rights guaranteed by that convention and a rule of
national law.
European Union law precludes a judicial practice which makes the obligation for
a national court to disapply any provision contrary to a fundamental right
guaranteed by the Charter of Fundamental Rights of the European Union
conditional upon that infringement being clear from the text of the Charter or the
case-law relating to it, since it withholds from the national court the power to
assess fully, with, as the case may be, the cooperation of the Court of Justice of
the European Union, whether that provision is compatible with the Charter.

[Signatures]

* Language of the case: Swedish.

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JUDGMENT OF THE COURT (Third Chamber)


10 September 2014 (*)

(Request for a preliminary ruling Directive 93/13/EEC Unfair terms Consumer


credit agreement Article 1(2) Term reflecting a mandatory statutory provision
Scope of the directive Articles 3(1), 4, 6(1) and 7(1) Security for credit in the form of
a charge on immovable property Whether it is possible to enforce the charge by means of a
sale by auction Judicial review)

In Case C34/13,
REQUEST for a preliminary ruling under Article 267 TFEU from the Krajsk! sd v Pre"ove
(Slovakia), made by decision of 20 December 2012, received at the Court on 23 January
2013, in the proceedings
Monika Ku!ionov
v
SMART Capital a.s.,
THE COURT (Third Chamber),
composed of M. Ile"i#, President of the Chamber, C.G. Fernlund, A. Caoimh, C. Toader
(Rapporteur) and E. Jara"i$nas, Judges,
Advocate General: N. Wahl,
Registrar: M. Aleksejev, Administrator,
having regard to the written procedure and further to the hearing on 5 June 2014,
after considering the observations submitted on behalf of:

the Slovak Government, by B. Ricziov, acting as Agent,

the German Government, by T. Henze and J. Kemper, acting as Agents,

the European Commission, by A. Tokr and M. van Beek, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an
Opinion,
gives the following
Judgment

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This request for a preliminary ruling concerns the interpretation of Council Directive
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), and
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of
the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the
European Parliament and of the Council (OJ 2005 L 149, p. 22), in the light of Article 38 of
the Charter of Fundamental Rights of the European Union (the Charter) and the judgment
in Simmenthal (106/77, EU:C:1978:49).

The request has been made in proceedings between Mrs Ku"ionov and SMART Capital
a.s. (SMART Capital) concerning the methods of enforcement of a charge provided by way
of guarantee for a mortgage loan agreement and the lawfulness of terms included in that
agreement.
Legal context
EU law

Article 7 of the Charter states that [e]veryone has the right to respect for his or her private
and family life, home and communications.

Article 38 of the Charter provides that Union policies are to ensure a high level of consumer
protection.

The first paragraph of Article 47 of the Charter states:


Everyone whose rights and freedoms guaranteed by the law of the Union are violated has
the right to an effective remedy before a tribunal in compliance with the conditions laid
down in this Article.

The twelfth to fourteenth and the twenty-fourth recital in the preamble to Directive 93/13
are worded as follows:
Whereas, however, as they now stand, national laws allow only partial harmonisation to be
envisaged; whereas, in particular, only contractual terms which have not been individually
negotiated are covered by this Directive; whereas Member States should have the option,
with due regard for the [EC] Treaty, to afford consumers a higher level of protection through
national provisions that are more stringent than those of this Directive;
Whereas the statutory or regulatory provisions of the Member States which directly or
indirectly determine the terms of consumer contracts are presumed not to contain unfair
terms; whereas, therefore, it does not appear to be necessary to subject the terms which
reflect mandatory statutory or regulatory provisions ; whereas in that respect the wording
mandatory statutory or regulatory provisions in Article 1(2) also covers rules which,
according to the law, shall apply between the contracting parties provided that no other
arrangements have been established;
Whereas Member States must however ensure that unfair terms are not included

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Whereas the courts or administrative authorities of the Member States must have at their
disposal adequate and effective means of preventing the continued application of unfair
terms in consumer contracts.
7

Article 1 of Directive 93/13 provides:


(1)
The purpose of this Directive is to approximate the laws, regulations and
administrative provisions of the Member States relating to unfair terms in contracts
concluded between a seller or supplier and a consumer.
(2)
The contractual terms which reflect mandatory statutory or regulatory provisions
shall not be subject to the provisions of this Directive.

Under Article 4(1) of that directive:


Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking
into account the nature of the goods or services for which the contract was concluded and by
referring, at the time of conclusion of the contract, to all the circumstances attending the
conclusion of the contract and to all the other terms of the contract or of another contract on
which it is dependent.

Article 6(1) of that directive provides: Member States shall lay down that unfair terms used
in a contract concluded with a consumer by a seller or supplier shall, as provided for under
their national law, not be binding on the consumer .

10

Article 7(1) of that directive provides:


Member States shall ensure that, in the interests of consumers and of competitors, adequate
and effective means exist to prevent the continued use of unfair terms in contracts concluded
with consumers by sellers or suppliers.
Slovak law

11

Paragraph 151j(1) of the Civil Code states:


Where a debt secured by a charge is not fully settled in due time, the secured creditor may
commence enforcement of the charge. In enforcing the charge, the secured creditor may
obtain settlement of the debt by the means specified in the contract or by sale of the security
at auction pursuant to a specific law, or he may seek settlement of the debt by the sale of
the security pursuant to specific statutory provisions, unless otherwise provided for by
this law or a specific law.

12

3 sur 14

The referring court states that there is a footnote to that paragraph, inserted after the words
pursuant to a specific law, which refers to Law No 527/2002 on voluntary auctions
supplementing Law No 323/1992 of the Slovak National Council on notaries and notarial
activity (the Notarial Code), as amended (the Law on Voluntary Sale by Auction), and a
further footnote, after the words specific statutory provisions, which refers to the Code of
Civil Procedure and to the Rules on Enforcement.

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Paragraph 151m of the Civil Code provides:


(1)
The secured creditor may sell the security by the means specified in the charge
agreement or at auction at the earliest 30 days from the date of the notice to the guarantor
and debtor of the commencement of enforcement of the charge, where the debtor and the
guarantor are not one and the same person, unless otherwise provided for by a specific law.
...
(2)
The guarantor and the secured creditor may, after notice of the commencement of
enforcement of the charge, agree that the secured creditor is authorised to sell the security by
the means agreed upon in the charge agreement or at auction even before the expiry of the
period prescribed in subparagraph (1).
(3)
A secured creditor who has commenced enforcement of a charge with the aim of
obtaining settlement of the debt by the means agreed upon in the charge agreement may
change the means of enforcing the charge at any time during the enforcement and sell the
security at auction or require that the debt be settled by the sale of the security pursuant to
specific statutory provisions. The secured creditor is required to inform the guarantor of the
change in the means of enforcement.

4 sur 14

14

Under Article 74(1) of the Code of Civil Procedure, the court may grant interim relief where
it is necessary temporarily to adjudicate on the relations between the parties or where there is
a risk of the enforcement of the judgment being undermined. Article 76(1) of that code
provides that the court may impose interim measures on a party, in particular in order for it
to take action, for it to abstain from taking action or for it to allow action to be taken.

15

In Paragraph 6 thereof, the Law on Voluntary Sale by Auction defines the auctioneer as the
person who organises the auction and meets the conditions laid down in this specific law
authorising that person to conduct such business. Paragraph 7(1) of that law defines the
person requesting sale by the auction as the owner of the subject-matter of the sale, the
secured creditor or any other person who is authorised to request that a sale by auction be
held under a specific law.

16

As regards, more specifically, the secured creditor, Paragraph 7(2) of the Law on Voluntary
Sale by Auction states that such a person is required to declare in writing, not only that the
subject-matter of the sale may be sold at auction, but also the amount of the debt in respect
of which an application for enforcement of the charge has been made under that law and that
the debt is genuine and payable.

17

According to Paragraph 16(1) of that law, a sale by auction may be proceeded with only on
the basis of a signed agreement between the person initiating the sale and the auctioneer.

18

Under Paragraph 17 of the Law on Voluntary Sale by Auction, the auctioneer is required to
announce the sale by auction by publishing a notice. If the item put up for auction is an
apartment, a house or other building, an undertaking or part of an undertaking, or if the
lowest bid is greater than EUR 16 550, the auctioneer is to publish the notice of public
auction at least 30 days before the auction begins and, without undue delay, forward the
notice of public auction to the Ministry for publication in the Official Trade Journal. The
notice of auction is also to be sent to the person initiating the sale by auction, the debtor of
the secured creditor and the owner of the property to be auctioned, where the latter is not the

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debtor.
19

Where the property to be auctioned is an apartment, a house or other building,


Paragraph 20(13) of that law provides that the terms of the sale are to be recorded in a
notarial act, in which the notary is also required to indicate the obligation imposed on the
previous owner in accordance with the first sentence of Paragraph 29(2) of that law.

20

Paragraph 21(2) of the Law on Voluntary Sale by Auction provides that in the event of
infringement of the provisions thereof, any person who considers himself adversely affected
may apply to the court for a declaration that the sale by auction is void. The right to apply to
the court lapses, however, if it is not exercised within three months following the public
auction, unless the grounds on which annulment is sought relate to the commission of a
criminal offence and the sale concerns a house or an apartment in which the previous owner
was officially permanently resident.

21

Paragraph 21(4) of the above law states that the parties to the proceedings for a declaration
that the sale by auction is void under Paragraph 21(2) are the person initiating the sale, the
auctioneer, the successful bidder, the previous owner and the person alleging infringement of
his rights in accordance with Paragraph 21(2).

22

Where the successful bidder defaults or the court declares the sale by auction void,
Paragraph 21(5) of that law provides that the auction is to be deemed void with effect from
the day on which the sale was concluded.

23

In the event of a sale by auction of property under Paragraph 20(13) of the Law on
Voluntary Sale by Auction, Paragraph 29(2) thereof provides, first of all, that the previous
owner is required, in accordance with the conditions set out in the notice of public auction
and without undue delay, to surrender the property to be auctioned upon production of a
certified copy of the notarial act and proof of identity of the successful bidder. Next, the
auctioneer is required to draw up on the spot a record of the surrender of the property sold.
Finally, that record is to include inter alia a detailed description of the condition of the
property and the circumstances in which the rights and obligations pertaining to the subjectmatter of the sale and, where appropriate, to the ancillary rights thereto, were transferred.

24

Paragraph 32(1) of that law provides that, unless otherwise provided, the proceeds of the
sale by auction, after reimbursement of the fees, settlement of the debt owing to the secured
creditor and payment of the cost relating to the auction, are to be paid without undue delay
by the auctioneer to the previous owner.
The dispute in the main proceedings and the questions referred for a preliminary
ruling

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25

On 26 February 2009, Mrs Ku"ionov concluded a consumer credit agreement with


SMART Capital for an amount of EUR 10 000. The loan was secured by a charge on the
family home in which the applicant in the main proceedings lives.

26

The latter brought before the Okresn! sd Humenn (District Court, Humenn) an action
for annulment of the credit agreement and the charge agreement against SMART Capital,
claiming that the contractual terms binding her to that undertaking were unfair. That court of
first instance partially annulled the credit agreement, holding that some of the contractual
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terms were unfair. The charge agreement, for its part, was annulled in its entirety. Both
parties brought an appeal against that judgment before the Krajsk! sd v Pre"ove (Regional
Court, Pre"ov).

6 sur 14

27

The referring court seeks to establish whether one of the terms of the charge agreement,
namely the term relating to extrajudicial enforcement of the charge on immovable property
provided as security by the consumer, is unfair and notes that that term enables the creditor
to enforce the charge without any review being carried out by a court.

28

In its assessment, the referring court, however, identified an additional difficulty in so far as
the term concerned derives from a statutory provision, namely Paragraph 151j of the Civil
Code.

29

Since the contractual terms which the referring court is required to review may be classified
as unfair for the purposes of Directive 93/13 and since one of those terms is of statutory
origin, that court considers that the outcome of the dispute before it depends on the
interpretation of EU law.

30

In those circumstances, the Krajsk! sd v Pre"ove decided to stay the proceedings and to
refer the following questions to the Court for a preliminary ruling:
(1)

Are [Directive 93/13] and [Directive 2005/29], in the light of Article 38 of [the
Charter], to be interpreted as precluding legislation of a Member State, such as
Paragraph 151j(1) of the Civil Code, in conjunction with other provisions of the
legislation applicable in the present case, which enables a creditor to recover sums on
the basis of unfair contract terms by enforcing a charge against a consumers
immovable property without any assessment of the contract terms by a court and
despite there being a dispute as to whether the contract term at issue is unfair?

(2)

Does the European Union legislation referred to [in question 1] preclude the
application of a national rule, such as Paragraph 151j(1) of the Civil Code, in
conjunction with other provisions of the legislation applicable in the present case,
which enables a creditor to recover sums on the basis of unfair contract terms by
enforcing a charge against a consumers immovable property without any assessment
of the contract terms by a court and despite there being a dispute as to whether the
contract term at issue is unfair?

(3)

Must the judgment of the Court of Justice [in Simmenthal, EU:C:1978:49] be


interpreted as precluding, in the interests of meeting the objectives of the directives
[referred to in question 1] and in the light of Article 38 of the [Charter], the national
court from applying domestic provisions, such as Paragraph 151j(1) of the Civil Code,
in conjunction with other provisions of the legislation applicable in the present case,
which enable a creditor to recover sums on the basis of unfair contract terms by
enforcing a charge against a consumers immovable property without any assessment
of the contract terms by a court and also, despite there being a dispute, to circumvent
review by a court of its own motion of the contract terms?

(4)

Is Article 4 of [Directive 93/13] to be interpreted as meaning that a term in a contract


concluded by a consumer without representation by a lawyer which enables a creditor
to enforce a charge by extra-judicial means and without any review by a court, is a

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circumvention of the important principle of EU law that contract terms are to be


reviewed by courts of their own motion and, for that reason, is unfair, even where the
wording of such a contract term is based on a national provision?
Developments since the request for a preliminary ruling was made
31

At the hearing of 5 June 2014, the Slovak Government informed the Court that, as a result
of the adoption of Law No 106/2014 Z.z. of 1 April 2014, applicable to all agreements in the
process of being enforced as of 1 June 2014, the procedural rules concerning the
enforcement of charges have been amended.

32

In particular, Paragraph 5(7) of that law supplemented Paragraph 21(2) of the Law on
Voluntary Sale by Auction, so that that provision is now worded as follows:
Where the validity of the charge agreement is challenged or the provisions of the present
law are infringed, any person who claims that his rights have been adversely affected as a
result of that infringement may request the court to declare the sale void .
Consideration of the questions referred
Admissibility of the questions referred

7 sur 14

33

The German Government contends, as its primary argument, that the first two questions
asked by the referring court are inadmissible.

34

First of all, the referring court has failed to provide either the factual or legal material
necessary for the Court to give a useful answer to those questions. First, whether it is
possible to enforce a charge without review by a court does not constitute a question relating
to an unfair commercial practice. Secondly, the referring court makes no specific reference
to the provisions of Directive 2005/29.

35

Next, those questions are hypothetical and the answer to them does not fall within the
jurisdiction of the Court. Since the charge has not yet been enforced by SMART Capital, the
situation described by the referring court does not exist.

36

Finally, the main proceedings relate to the alleged nullity of the loan agreement and of the
charge agreement. However, the referring court seeks to obtain, by means of its first two
questions, an assessment of whether national procedural provisions comply with Directive
93/13. Since the latter seeks to approximate the laws of the Member States on unfair terms,
it covers only terms stipulated in contracts and not the conditions laid down by national law
for the enforcement of such a charge.

37

While acknowledging that the request for a preliminary ruling contains certain lacunae, the
Slovak Government nevertheless considers that the first two questions asked by the referring
court are admissible. As regards the European Commission, it claimed, at the hearing, that
the conditions for establishing inadmissibility as defined by the Court in the Order in SKP,
C433/11, EU:C:2012:702, are not satisfied in the present case and it therefore considers that
those two questions are admissible.

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38

It should be noted in that respect that, according to the Courts settled caselaw, questions
on the interpretation of EU law referred by a national court in the factual and legislative
context which that court is responsible for defining, and the accuracy of which is not a
matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse
to rule on a question referred for a preliminary ruling by a national court only where it is
quite obvious that the interpretation of EU law that is sought bears no relation to the actual
facts of the main action or its purpose, where the problem is hypothetical, or where the Court
does not have before it the factual or legal material necessary to give a useful answer to the
questions submitted to it (judgment in Pohotovos!, C470/12, EU:C:2014:101, paragraph 27
and case-law cited).

39

In the first place, it should be noted that the first question referred relates, in addition to
Directive 93/13, to Directive 2005/29. However, as was correctly pointed out by the German
Government, the referring court merely refers to the latter directive without stating the
reason why an interpretation of that directive is necessary for the resolution of the main
proceedings. Moreover, it does not explain to what extent the procedure for enforcing the
charge that is contested by the applicant in the main proceedings may constitute an unfair
commercial practice.

40

As regards the purpose of the present request for a preliminary ruling, it concerns the scope
of Articles 1(2), 3(1), 4, 6(1) and 7(1) of Directive 93/13, provisions under which the EU
legislature, respectively, provided for a derogation from the scope of that directive, defined
what constitutes an unfair term, established the rule that an unfair term does not bind
consumers and stated that the Member States are to ensure that adequate and effective means
exist to prevent the continued use of unfair terms.

41

Therefore, the questions asked by the referring court will be answered solely in the light of
the provisions of Directive 93/13.

42

In the second place, the fact that the enforcement of the charge has not yet been completed
does not mean that those questions are hypothetical. First, the referring court points out that
SMART Capital has actually taken steps against the consumer with a view to the sale of the
property subject to the charge. Secondly, even though the enforcement of the charge has not
been concluded, the questions referred do not so much seek to ascertain whether the sale has
been completed as to determine whether the creditor may de jure proceed with such a sale
and whether judicial remedies are available to the debtor to contest the enforcement.

43

To that extent, the questions referred for a preliminary ruling are not hypothetical and the
interpretation requested of the provisions of Directive 93/13 is necessary for the resolution
of the main proceedings.

44

In the light of the foregoing, the Court therefore finds that the request for a preliminary
ruling is admissible.
Substance
Questions 1 to 3

45

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It should be pointed out that, although the first question refers only to Article 38 of the
Charter, the present request for a preliminary ruling relates to, in essence, and cites, in

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particular, among the relevant elements of EU law, Article 47 of the Charter. In view of the
fact that the first three questions asked by the referring court seek to determine the level of
protection afforded consumers and the judicial remedies available to the latter, that article
should be included amongst the European Union legal instruments which the referring court
seeks to have interpreted by the Court.

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46

By its first three questions, which it is appropriate to examine together, the referring court
asks, in essence, whether, in the light of Articles 38 and 47 of the Charter, Directive 93/13
must be interpreted as precluding national legislation, such as that at issue in the main
proceedings, which allows the recovery of a debt that is based on potentially unfair contract
terms by the extrajudicial enforcement of a charge on immovable property provided as
security by the consumer. If that is the case, that court seeks to ascertain whether, in
accordance with the case-law deriving from the judgment in Simmenthal (EU:1978:49),
those domestic provisions must be set aside.

47

It should be noted, first, that Article 38 of the Charter provides that European Union policies
must ensure a high level of consumer protection. Article 47 of the Charter concerns the right
to an effective judicial remedy. Those mandatory requirements are applicable to the
implementation of Directive 93/13 (see, to that effect, the judgment in Pohotovos!,
EU:C:2014:101, paragraph 52).

48

Secondly, in its case-law, the Court has already held that the system of protection introduced
by Directive 93/13 is based on the idea that the consumer is in a weak position vis--vis the
seller or supplier, as regards both his bargaining power and his level of knowledge. This
leads to the consumer agreeing to terms drawn up in advance by the seller or supplier
without being able to influence the content of those terms (judgments in Pohotovos!,
EU:C:2014:101, paragraph 39 and case-law cited; Ksler and Kslern Rbai, C26/13,
EU:C:2014:282 paragraph 39 and the case-law cited; and Snchez Morcillo and Abril
Garca, C169/14, EU:C:2014:2099, paragraph 22).

49

With regard to the enforcement of guarantees attached to loan agreements concluded by


consumers, it is clear that Directive 93/13 is silent as to enforcement of charges.

50

However, it is settled case-law that, in the absence of harmonisation of national mechanisms


for enforcement under EU law, it is for the national legal order of each Member State to
establish such rules, in accordance with the principles of procedural autonomy, provided,
however, that those rules are not less favourable than those governing similar domestic
situations (principle of equivalence) and that they do not make it excessively difficult or
impossible in practice to exercise the rights conferred by EU law (principle of effectiveness)
(see, to that effect, judgments in Aziz, C415/11, EU:C:2013:164, paragraph 50 and case-law
cited, and Pohotovos!, EU:C:2014:101, paragraph 46).

51

As regards the principle of equivalence, the Court does not have before it any evidence
which might raise doubts as to the compliance of the legislation at issue in the main
proceedings with that principle.

52

As regards the principle of effectiveness, it should be noted that the Court has already held
that every case in which the question arises as to whether a national procedural provision
makes the application of EU law impossible or excessively difficult must be analysed by
reference to the role of that provision in the procedure, its progress and its special features,
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viewed as a whole, before the various national bodies (judgment in Asociacin de


Consumidores Independientes de Castilla y Len, C413/12, EU:C:2013:800, paragraph 34
and case-law cited).

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53

Moreover, the specific characteristics of court proceedings which take place under national
law between sellers or suppliers and consumers cannot constitute a factor which is liable to
affect the legal protection from which consumers must benefit under the provisions of
Directive 93/13 (see, to that effect, judgments in Banco Espaol de Crdito, C618/10,
EU:C:2012:349, paragraph 55 and case-law cited, and Aziz, EU:C:2013:164, paragraph 62).

54

It is necessary, therefore, to determine, in a situation such as that in the main proceedings, to


what extent it is impossible in practice or excessively difficult to apply the protection
conferred by that directive.

55

In this case, it is clear from the documents before the Court that Paragraph 151m(1) of the
Civil Code, read in conjunction with Paragraph 17(3) of the Law on Voluntary Sale by
Auction, provides, first, that a sale by auction may be contested within 30 days of the notice
of enforcement of the charge and, secondly, that the person who contests the conditions
under which that sale took place has, under Paragraph 21(2) of that law, a period of three
months following the public auction to take steps.

56

Although Directive 93/13 requires that the national court hearing disputes between
consumers and sellers or suppliers take positive action unconnected with the parties to the
contract (the judgments in Asbeek Brusse and de Man Garabito, C488/11, EU:C:2013:341,
paragraph 39 and case-law cited, and Pohotovos!, EU:C:2014:101, paragraph 40 and
case-law cited), the need to comply with the principle of effectiveness cannot be stretched so
far as to make up fully for the total inertia on the part of the consumer concerned (see, to that
effect, the judgment in Asturcom Telecomunicaciones, C40/08, EU:C:2009:615,
paragraph 47).

57

Subject to investigations to be carried out by the referring court, the combination of


time-limits laid down by the national legislation at issue in the main proceedings, as referred
to in paragraph 55 of the present judgment, is comparable neither with the 20-day time-limit
at issue in the case giving rise to the judgment in Banco Espaol de Crdito,
EU:C:2012:349, nor with facts of the case giving rise to the judgment in Aziz,
EU:C:2013:164, paragraphs 57 to 59, in both of which cases the consumers action against
such measures was unsuccessful.

58

In addition, in order to protect the rights granted to consumers by Directive 93/13, the
Member States are bound, in particular, under Article 7(1) of that directive, to adopt
protective measures in order to prevent the continued application of terms which are deemed
unfair. That is, moreover, confirmed by recital 24 in the preamble to that directive, which
states for that purpose that the courts or administrative authorities of the Member States
must have at their disposal adequate and effective means.

59

In particular, according to the Courts settled case-law relating to the principle of sincere
cooperation, now enshrined in Article 4(3) TEU, while the choice of penalties applicable to
infringements of EU law remains within their discretion, Member States must ensure in
particular that they are effective, proportionate and dissuasive (see, to that effect, the

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judgment in LCL Le Crdit Lyonnais, C565/12, EU:C:2014:190, paragraph 44 and case-law


cited).

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60

With regard to the requirement that the penalty should be effective and dissuasive, first, the
written observations submitted to the Court by the Slovak Government state that, during
such a procedure for the extrajudicial enforcement of a charge, the national court with
jurisdiction may, under Paragraphs 74(1) and 76(1) of the Code of Civil Procedure, adopt
any interim measure to prevent such a sale from going ahead.

61

Secondly, as stated in paragraphs 31 and 32 of the present judgment, it appears that Law
No 106/2014 Z.z. of 1 April 2014, which entered into force on 1 June 2014 and is applicable
to all charge agreements in the process of being enforced as of that date, amended the
procedural rules applicable to a term such as that at issue in the main proceedings. In
particular, Paragraph 21(2) of the Law on Voluntary Sale by Auction, in the version in force,
allows the court, where the validity of the term providing for the charge is challenged, to
declare the sale void, which, retrospectively, places the consumer in a situation almost
identical to his original situation and does not therefore limit the compensation for the harm
caused to him, where the sale is unlawful, to mere monetary compensation.

62

With regard to the proportionality of the penalty, it is necessary to give particular attention
to the fact that the property at which the procedure for the extrajudicial enforcement of the
charge at issue in the main proceedings is directed is the immovable property forming the
consumers family home.

63

The loss of a family home is not only such as to seriously undermine consumer rights (the
judgment in Aziz, EU:C:2013:164, paragraph 61), but it also places the family of the
consumer concerned in a particularly vulnerable position (see, to that effect, the Order of the
President of the Court in Snchez Morcillo and Abril Garca, EU:C:2014:1388,
paragraph 11).

64

In that regard, the European Court of Human Rights has held, first, that the loss of a home is
one of the most serious breaches of the right to respect for the home and, secondly, that any
person who risks being the victim of such a breach should be able to have the proportionality
of such a measure reviewed (see the judgments of the European Court of Human Rights in
McCann v United Kingdom, application No 19009/04, paragraph 50, ECHR 2008, and
Rousk v Sweden, application No 27183/04, paragraph 137).

65

Under EU law, the right to accommodation is a fundamental right guaranteed under


Article 7 of the Charter that the referring court must take into consideration when
implementing Directive 93/13.

66

With regard in particular to the consequences of the eviction of the consumer and his family
from the accommodation forming their principal family home, the Court has already
emphasised the importance, for the national court, to provide for interim measures by which
unlawful mortgage enforcement proceedings may be suspended or terminated where the
grant of such measures proves necessary in order to ensure the effectiveness of the
protection intended by Directive 93/13 (see, to that effect, the judgment in Aziz,
EU:C:2013:164, paragraph 59).

67

In the present case, the fact that it is possible for the competent national court to adopt any

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interim measure, such as that described in paragraph 60 of the present judgment, would
suggest that adequate and effective means exist to prevent the continued use of unfair terms,
which is a matter for the referring court to determine.
68

It follows from the foregoing considerations that Directive 93/13 must be interpreted as not
precluding national legislation, such as that at issue in the main proceedings, which allows
the recovery of a debt that is based on potentially unfair contractual terms by the
extrajudicial enforcement of a charge on immovable property provided as security by the
consumer, in so far as that legislation does not make it excessively difficult or impossible in
practice to protect the rights conferred on consumers by that directive, which is a matter for
the national court to determine.

69

In the light of the answer given to the first part of the first three questions, there is no need
to answer the second part of those questions, relating to the effect of the case-law devolving
from the judgment in Simmenthal (EU:C:1978:49) on national legislation allowing
extrajudicial enforcement of a charge.
Question 4

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70

By Question 4, the referring court asks, in essence, whether Article 4 of Directive 93/13
must be interpreted as precluding a contractual term in an agreement concluded by a seller or
supplier with a consumer, even though the wording of that term is based on a statutory
provision.

71

First of all, it must be noted that the fact that a national court has, formally speaking,
worded a question referred for a preliminary ruling with reference to certain provisions of
EU law does not preclude the Court from providing to the national court all the elements of
interpretation which may be of assistance in adjudicating on the case pending before it,
whether or not that court has referred to them in its questions. It is, in this context, for the
Court to extract from all the information provided by the national court, in particular from
the grounds of the decision referring the questions, the points of EU law which require
interpretation, regard being had to the subject-matter of the dispute (the judgment in
Vicoplus and Others, C307/09 to C309/09, EU:C:2011:64, paragraph 22 and the case-law
cited).

72

Next, since the referring court refers extensively to the exclusion from the scope of
Directive 93/13 of contractual terms which reflect domestic statutory provisions, it should be
noted that, although reference is not made to Article 1(2) of that directive in the request for a
preliminary ruling, the fourth question referred for a preliminary ruling impliedly but
necessarily relates to that provision. Consequently, the present request for a preliminary
ruling must be regarded as relating to Article 1(2) of that directive.

73

Finally, it is settled case-law that the Court may, in the context of its jurisdiction under
Article 267 TFEU to interpret EU law, interpret general criteria used by the EU legislature in
order to define the concept of unfair terms (see, to that effect, the order in Pohotovos!,
C76/10, EU:C:2010:685, paragraph 60 and case-law cited). However, it is for the national
court to determine, in the light of those criteria, whether a particular contractual term is
actually unfair in the circumstances of the case. It follows that the Court must limit itself to
providing the referring court with guidance which the latter must take into account in order
to assess whether the term at issue is unfair (the judgments in Aziz, EU:C:2013:164,

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paragraph 66 and case-law cited; Ksler and Kslern Rbai, EU:C:2014:282, paragraph 45;
and the order in Sebestyn, C342/13, EU:C:2014:1857, paragraph 25).
74

While Article 1(1) of Directive 93/13 defines the scope of that directive, Article 1(2) thereof
provides that terms which reflect mandatory statutory or regulatory provisions are excluded.

75

In that regard, the Slovak and German governments propose that the Court should answer
that the contractual term at issue in the main proceedings, namely that providing for
voluntary sale by auction, is covered by that exclusion. Conversely, the Commission
considers that the effectiveness of the provisions of Directive 93/13 would be undermined if
a situation such as that in the main proceedings were covered by such an exclusion.

76

The Court has already had occasion to point out that Article 1(2) of Directive 93/13
establishes an exclusion from the scope of that directive which covers terms which reflect
mandatory statutory or regulatory provisions (see, to that effect, the judgment in RWE
Vertrieb, C92/11, EU:C:2013:180, paragraph 25).

77

As with all derogations, it should be noted, having regard to the purpose of that directive,
namely the protection of consumers against unfair terms included in contracts concluded
with consumers by sellers or suppliers, that it is to be strictly construed.

78

In this case, it is apparent from the judgment in RWE Vertrieb, EU:C:2013:180, that that
exclusion requires two conditions to be met. First, the contractual term must reflect a
statutory or regulatory provision and, secondly, that provision must be mandatory.

79

In that regard, it should be noted that, in order to establish whether a contractual term is
excluded from the scope of Directive 93/13, it is for the national court to determine whether
that term reflects provisions of national law that apply between the parties to the contract
independently of their choice or those that apply by default, that is to say in the absence of
other arrangements established by the parties (see, to that effect, judgment in RWE Vertrieb,
EU:C:2013:180, paragraph 26).

80

In the light of the foregoing considerations, the answer to Question 4 is that Article 1(2) of
Directive 93/13 must be interpreted as meaning that a contractual term included in a contract
concluded by a seller or supplier with a consumer falls outside the scope of that directive
only if that contractual term reflects the content of a mandatory statutory or regulatory
provision, which is a matter for the national court to determine.
The temporal effect of this judgment

81

In the event that the Court reaches the conclusion that Directive 93/13 must be interpreted
as meaning that the extrajudicial enforcement of a charge such as that at issue in the main
proceedings must be preceded by review by a court, the Slovak Government requests the
Court to limit the temporal effects of any such judgment.

82

In the light of the answer to the first three questions, it is not necessary to respond to that
request by the Slovak Government.
Costs

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Costs incurred in submitting observations to the Court, other than the costs of the parties to
the main proceedings, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
1.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer


contracts must be interpreted as not precluding national legislation, such as that
at issue in the main proceedings, which allows the recovery of a debt that is based
on potentially unfair contractual terms by the extrajudicial enforcement of a
charge on immovable property provided as security by the consumer, in so far as
that legislation does not make it excessively difficult or impossible in practice to
protect the rights conferred on consumers by that directive, which is a matter for
the national court to determine.

2.

Article 1(2) of Directive 93/13 must be interpreted as meaning that a contractual


term included in a contract concluded by a seller or supplier with a consumer
falls outside the scope of that directive only if that contractual term reflects the
content of a mandatory statutory or regulatory provision, which is a matter for
the national court to determine.

[Signatures]

* Language of the case: Slovakian.

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EU Law: What is the Principle of Proportionality & Subsidiarity?


Written by Claire Bradley - Last Updated Saturday, 23 April 2011 13:22

What is the Principle of Proportionality & Subsidiarity?


The principle of proportionality and subsidiarity is extremely important because it underlies
everything the European Union does in areas where it does not have the right of exclusive
competence.

In plain English it means that the EU should not get involved in matters which do not concern it.

The official version runs as follows:

"1. The limits of Union competences are governed by the principle of conferral. The use of
Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,
the Union shall act only if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level or at regional and local level,
but can rather, by reason of the scale or effects of the proposed action, be better achieved at
Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol
on the application of the principles of subsidiarity and proportionality.

4. Under the principle of proportionality, the content and form of Union action shall not exceed
what is necessary to achieve the objectives of the Treaties. (Article 5 of the Treaty on European
Union)

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EU Law: What is the Principle of Proportionality & Subsidiarity?


Written by Claire Bradley - Last Updated Saturday, 23 April 2011 13:22

What this means in practice is that the European Commission must justify the relevance of any
proposals against the principle, and in fact, when proposals go to the European Parliament
committees it is one of the first tests they consider.

If you feel that a proposal is just another example of over regulation, i.e. it is entirely
disproportionate, then you may have strong grounds for opposing it on the grounds of
proportionality.

Equally, if you believe that the issue being addressed by the legislation is not trans-european,
and should therefore be addressed by individual Member States then again you might have
grounds for opposition on the grounds of subsidiarity.

See also the article "What arguments can I use" in our How Do I section.

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JUDGMENT OF THE COURT (Seventh Chamber)


12 December 2013 (*)

(Request for a preliminary ruling Freedom to provide services Grants of public money,
co-financed by the European Social Fund, for students enrolled in postgraduate specialist
programmes of study Regional legislation designed to enhance the level of education
locally and making the award of grants subject to conditions targeting providers of
post-graduate programmes of study Condition requiring 10 years continuous experience)

In Case C523/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale
amministrativo regionale per la Puglia (Italy), made by decision of 17 May 2012, received at
the Court on 19 November 2012, in the proceedings
Dirextra Alta Formazione srl
v
Regione Puglia,
THE COURT (Seventh Chamber),
composed of G. Arestis, acting as President of the Seventh Chamber, J.C. Bonichot
(Rapporteur) and A. Arabadjiev, Judges,
Advocate General: M. Wathelet,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:

Regione Puglia, by S.O. Di Lecce and V. Triggiani, avvocati,

the European Commission, by E. Montaguti and H. TserepaLacombe, acting as


Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an
Opinion,
gives the following
Judgment

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This request for a preliminary ruling concerns the interpretation of Articles 56 TFEU, 101
TFEU and 107 TFEU, Articles 9 and 10 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (the
ECHR), Article 2 of the Additional Protocol thereto and Articles 11 and 14 of the Charter
of Fundamental Rights of the European Union (the Charter).

The request has been made in proceedings between Dirextra Alta Formazione srl
(Dirextra), a provider of post-graduate education, and Regione Puglia (the Puglia Region)
concerning the decisions taken by the latter making the award of university student grants
co-financed by the European Social Fund (the ESF) subject to certain conditions relating,
inter alia, to the length of time for which the educational body with which applicants for
such grants plan to enrol has been in existence.
Legal context
European Union (EU) law

Recital 22 in the preamble to Council Regulation (EC) No 1083/2006 of 11 July 2006


laying down general provisions on the European Regional Development Fund, the European
Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006
L 210, p. 25) states that the activities of the Funds and the operations which they help to
finance should be consistent with the other Community policies and comply with
Community legislation.

Under Article 9(5) of Regulation No 1083/2006:


Operations financed by the Funds shall comply with the provisions of the Treaty and of acts
adopted under it.
Puglia Region legislation

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Measures for supporting post-graduate studies within the framework of the projections of
the ESF Puglia Regional Operational Programme were outlined in Regional Law No 12 of
26 May 2009 laying down provisions relating to student grants intended to help graduates
from the Puglia Region to acquire further university qualifications (legge regionale No 12
Misure in tema di borse di studio a sostegno della qualificazione delle laureate e dei laureati
pugliesi) (Bollettino Ufficiale della Regione Puglia (Puglia Region Official Gazette) No 78
of 29 May 2009, p. 9856) (the Regional Law).

Article 2 of the Regional Law lists the various conditions which providers of postgraduate
education must satisfy in order for those attending the corresponding courses to be eligible
for the student grants offered.

The conditions vary depending on whether they concern (i) Italian or foreign universities,
whether public or private, recognised by Italian law, (ii) higher education establishments,
whether private or public, which organise approved Masters degree courses, or (iii) other
higher education establishments satisfying specific conditions relating, inter alia, to the
experience accrued by such establishments in providing postgraduate education.

Concerning the final category, Article 2(3) of the Regional Law is worded as follows:
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The Masters degree courses chosen by the individuals concerned must be provided by
higher education establishments, whether private or public, which, in the 10 calendar years
prior to the issuing of the public notice concerning the award of student grants, have
continuously and demonstrably provided post-graduate education. Post-graduate education
refers only to courses exclusively aimed at individuals who have already successfully
followed a degree course, the total duration of which was not less than 800 hours. The
educational activities provided must have been carried out in the capacity of implementing
body rather than merely in the capacity of partner. Likewise, the Masters courses chosen by
the individuals concerned must have a total duration of not less than 800 hours, including at
least 500 hours of classroom training, and at least 30 per cent of the total duration of that
course must be work experience.
9

By decision of 2 December 2009, the Director of the Servizio Formazione Professionale


della Regione Puglia (Occupational Training Service, Puglia Region) approved the notice
launching the procedure for awarding student grants under the Regional Law.

10

That notice stated, in particular, that such grants could be awarded in respect of
post-graduate Masters degree courses organised by higher education establishments
whether private or public which, from 3 December 1999 to 3 December 2009 inclusive,
had continuously and demonstrably provided postgraduate education (the condition
relating to 10 years experience).
The dispute in the main proceedings and the question referred for a preliminary
ruling

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11

Dirextra is a private higher education establishment which has demonstrably provided more
than 8 000 hours of post-graduate education as a result of its activity during the 5 years
rather than the 10 years required by the Regional Law prior to the issuing of the notice
launching the procedure for the award of the student grants.

12

In the action brought before the Tribunale amministrativo regionale per la Puglia (Regional
Administrative Court, Puglia; the referring court) for the annulment of both the notice
launching that procedure and the decision of 2 December 2009 approving that notice,
Dirextra contested the legality of the condition relating to 10 years experience.

13

Dirextra submitted that such a requirement was incompatible with EU law, in particular
with the principles of free competition, proportionality and nondiscrimination, and that it
infringed Article 56 et seq. TFEU, Article 101 et seq. TFEU and Directive 2004/17/EC of
the European Parliament and of the Council of 31 March 2004 coordinating the procurement
procedures of entities operating in the water, energy, transport and postal services sectors
(OJ 2004 L 134, p. 1), Directive 2004/18/EC of the European Parliament and of the Council
of 31 March 2004 on the coordination of procedures for the award of public works contracts,
public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and Directive
2006/123/EC of the European Parliament and of the Council of 12 December 2006 on
services in the internal market (OJ 2006 L 376, p. 36).

14

While finding that those directives are not applicable in the present case, the referring court
is of the view, in essence, that the restrictions on the freedom to provide services arising
from the condition relating to 10 years experience indicate unequal treatment which is not

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compatible with the purpose of the ESFs activities, namely, to enhance the quality of the
educational system as a whole. According to the referring court, making the selection of
providers subject to that condition is disproportionate and inappropriate in relation to the
actual duration of the courses eligible for funding (at least 800 hours per year), and is even
excessive in relation to the purpose of the European Unions activities.
15

The referring court suggests that eligible providers could be selected on the basis of
conditions which are less restrictive of competition and more proportionate to the duration of
the Masters degree courses to be organised by bodies which can claim a high level of
professionalism, without distorting competition or affecting the quality of the teaching
provided while at the same time guaranteeing freedom to teach and pluralism of ideas, as
protected by Articles 9 and 10 ECHR and Articles 11 and 14 of the Charter.

16

In those circumstances, the Tribunale amministrativo regionale per la Puglia decided to stay
the proceedings and to refer the following question to the Court of Justice for a preliminary
ruling:
Is a provision of law such as Article 2(3) of [the Regional Law] which regulates in a
restrictive manner access to the market for the provision of certain specific services designed
to enhance the level of education locally (post-graduate Masters degree courses), making
such access conditional upon meeting a single requirement which, in relation to the purpose
of the Community measure (enhancement of the quality of education and, accordingly,
selection of individuals with suitable qualifications) is arbitrarily chosen and expressed (a
number of hours spread over an unnecessarily long period) and not differentiated according
to the actual duration of the specific service, compatible with Article 56 [TFEU] et seq. and
Article 101 [TFEU] et seq. and Article 107 [TFEU] et seq. and with the principles of
competition, proportionality, nondiscrimination and equal treatment which may be inferred
from those rules, and with Articles 9 and 10 [ECHR], Article 2 of the Additional Protocol
thereto and Articles 11 and 14 of [the Charter]?
Consideration of the question referred
Preliminary observations

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17

It should be borne in mind that the Court of Justice does not have jurisdiction to rule, in
preliminary ruling proceedings, on the compatibility of provisions of national law with rules
of EU law. However, it does have jurisdiction to provide the referring court with all the
guidance as to the interpretation of EU law necessary to enable that court to make its own
ruling on whether or not such provisions are compatible with EU law for the purposes of
resolving the dispute before it (see, to that effect, Case C42/07 Liga Portuguesa de Futebol
Profissional and Bwin International [2009] ECR I7633, paragraph 37).

18

By asking whether a condition which results in certain higher education establishments


being unable to offer their services to applicants for a regional student grant co-financed by
the ESF is excessive in the light of EU law, the referring court is asking the Court of Justice,
in essence, whether the requirements of the freedom to provide services enshrined in Article
56 TFEU preclude a condition of that kind. As a result, its arguments relating to the
principles of proportionality and nondiscrimination must be regarded as merging with those
relating to those requirements and there is, accordingly, no need to address them separately.
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19

In addition, the reasons given in the order for reference for the references made in the
question to Article 101 TFEU et seq. (relating to competition), Article 107 TFEU et seq.
(relating to State aid), and Articles 11 and 14 of the Charter are not sufficient to enable the
Court to assess the relevance of those provisions or, consequently, to give a ruling on the
question referred in so far as it concerns those provisions.

20

Lastly, it should be borne in mind that EU law does not govern the relations between the
ECHR and the legal systems of the Member States; nor does it determine the conclusions to
be drawn by a national court in the event of conflict between the rights guaranteed by that
convention and a rule of national law (see, to that effect, Case C571/10 Kamberaj [2012]
ECR, paragraph 62, and Case C617/10 kerberg Fransson [2013] ECR, paragraph 44).
Accordingly, there is no need for the Court to give a ruling on the question referred by the
Tribunale amministrativo regionale per la Puglia in so far as that question concerns the
ECHR and the Additional Protocol thereto.
Freedom to provide services

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21

It is settled case-law that the freedom to provide services under Article 56 TFEU requires
not only the elimination of all discrimination on grounds of nationality against providers of
services established in other Member States, but also the abolition of any restriction even
if it applies without distinction to national providers of services and to those from other
Member States which is liable to prohibit, impede or render less attractive the activities of
a provider of services established in another Member State where he lawfully provides
similar services (see, to that effect, Case C265/12 Citron Belux [2013] ECR, paragraph 35
and the case-law cited).

22

In the present case, it is conceivable that educational bodies established in Member States
other than the Italian Republic may be deprived solely on the ground that they do not
satisfy the condition relating to 10 years experience imposed by the Regional Law of the
opportunity to supply their services to students who are eligible for the regional study grant.

23

Furthermore, by making the award of that grant conditional upon the educational body with
which the student plans to enrol demonstrating 10 years continuous experience, a provision
such as that at issue in the main proceedings may deter that student from enrolling in bodies
which do not satisfy that condition and may thus render less attractive the activities of such
bodies.

24

Such a restriction on the freedom to provide services is warranted only if it pursues a


legitimate objective compatible with the Treaty and is justified by overriding reasons in the
public interest; if that is the case, it must be suitable for securing the attainment of the
objective which it pursues and must not go beyond what is necessary in order to achieve it
(see, inter alia, Citron Belux, paragraph 37 and the case-law cited).

25

In the present case, the documents placed before the Court indicate that the objective
pursued by the regional legislation at issue is that of ensuring that the post-graduate
education to which access for young, unemployed graduates is made easier through the
award of a study grant is of a high standard, in order to facilitate the access of such students
to the labour market. It is indisputable that making the financing of postgraduate education
subject to a condition which is intended to guarantee the quality of that education is based on
an overriding reason in the public interest. The aim of ensuring high standards of university
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education appears to be a legitimate objective capable of justifying restrictions on


fundamental freedoms (see, to that effect, Case C153/02 Neri [2003] ECR I13555,
paragraph 46).
26

A measure requiring educational bodies to have a minimum level of experience is, in itself,
appropriate for achieving the objective pursued, as described above.

27

Moreover, it is not apparent from the information available to the Court that, in requiring 10
years continuous experience from the educational bodies with which the students in
question may enrol, the condition goes beyond what is necessary in order to achieve that
objective.

28

Indeed, it is clear that Article 2 of the regional legislation at issue allows students to enrol,
not only with Italian or foreign universities, whether public or private, which are recognised
by Italian law, but also in higher education establishments, whether private or public, which
organise approved Masters degree courses, or even with other bodies organising
nonapproved Masters degree courses. It does not seem excessive to require those bodies,
which are the only bodies subject to the condition relating to 10 years experience, to
demonstrate experience of sufficient duration to support the presumption in the absence of
any monitoring by the public authority and in the absence of any official approval of the
Masters degree courses concerned that the education provided by such bodies is of the
same quality as the education provided by university establishments recognised by Italian
law and by bodies organising approved Masters degree courses.

29

From that perspective, it does not seem that the required 10 years experience is excessive
in view of the length of time required for universities to gain recognition under Italian law or
for Masters degree courses organised by other providers of post-graduate education to be
approved.

30

In the light of the foregoing, the answer to the question referred is that Article 56 TFEU
must be interpreted as not precluding a provision of national law, such as the provision at
issue in the main proceedings, which requires higher education establishments with which
students applying for a regional study grant cofinanced by the ESF plan to enrol to
demonstrate 10 years experience where such establishments are neither universities
recognised by that national law nor establishments organising approved Masters degree
courses.
Costs

31

Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is a matter for that court. Costs
incurred in submitting observations to the Court, other than the costs of those parties, are not
recoverable.
On those grounds, the Court (Seventh Chamber) hereby rules:
Article 56 TFEU must be interpreted as not precluding a provision of national law,
such as the provision at issue in the main proceedings, which requires higher education

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establishments with which students applying for a regional study grant co-financed by
the European Social Fund plan to enrol to demonstrate 10 years experience where
such establishments are neither universities recognised by that national law nor
establishments organising approved Masters degree courses.
[Signatures]

* Language of the case: Italian.

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C-58/08 Vodafone, judgment of 8 June 2010


Internal market: the Court recognises the validity of the Regulation on
roaming (Regulation (EC) No 717/2007 of 27 June 2007).
Regulation (EC) No 717/2007 on roaming fixes maximum charges, the Eurotariffs,
which may be invoiced by mobile telephony operators for voice calls received or made
by a user travelling abroad. Provision is also made for a cap on wholesale charges, i.e.
the prices payable by the consumers network to the foreign network. Initially
scheduled to expire on 30 June 2010, this Regulation was finally amended to extend its
validity until 30 June 2012, whilst at the same time extending the caps on charges to
SMS and other data transmissions.
It is the original version of the Regulation which was challenged by several mobile
telephony operators before the High Court of Justice of England and Wales. The latter
asked the Court of Justice whether the Community legislature had the power to adopt
the Regulation on the basis of Article 95 of the TEC (which has become Article 114 of
the TFEU) and whether, by fixing maximum retail charges, it has infringed the
principles of subsidiarity and/or proportionality.
In this judgment, the Court confirms the validity of the Regulation. It points out firstly
that the Community legislature was in a situation in which, given the high level of
prices for roaming services charged by operators and the growing concerns expressed
on this matter by public authorities and consumer associations, the adoption of
national measures to lower retail prices seemed likely. The heterogeneity of such
legislation and the absence of effective instruments in the hands of the national
regulators to influence wholesale prices too were liable to cause significant distortions
of competition and to disrupt the orderly functioning of the roaming markets. Under
these conditions, the Court considers that the Regulation, by establishing a common,
coherent framework at Union level, did genuinely have the object of improving the
conditions for the functioning of the internal market and that it could be adopted on
the basis of Article 95 of the TEC.
Secondly, after having again emphasised the specific characteristics of the roaming
markets and especially the relationship between costs and prices, on the one hand,
and between retail and wholesale charges on the other, the Court finds that the
intervention of the Community legislature, which for that matter is limited in time,
proves to be proportionate in relation to the objective pursued, in spite of the negative
consequences for certain operators. In particular, the Court stresses the in-depth
analyses included in the impact assessment which preceded the presentation of the
proposal in question, and the fact that the Community legislature could legitimately
consider that regulating only the wholesale markets would not have achieved the same
result.
Finally, as regards the principle of subsidiarity, the Court concludes that in view of the
interdependence of retail and wholesale prices, the Community legislature could
legitimately consider that a common approach was necessary to guarantee the smooth
functioning of the internal market.

October 2010

http://ec.europa.eu/dgs/legal_service/arrets/08c058_en.pdf

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JUDGMENT OF THE COURT (Fifth Chamber)


22 May 2014 (*)

(Request for a preliminary ruling Transport Directive 2006/126/EC Point 6.4 of


Annex III Validity Charter of Fundamental Rights of the European Union
Articles 20, 21(1) and 26 United Nations Convention on the Rights of Persons with
Disabilities Driving licences Physical and mental fitness to drive a motor vehicle
Minimum standards Visual acuity Equal treatment No possibility of derogation
Proportionality)

In Case C356/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bayerischer
Verwaltungsgerichtshof (Germany), made by decision of 5 July 2012, received at the Court
on 27 July 2012, in the proceedings
Wolfgang Glatzel
v
Freistaat Bayern,
THE COURT (Fifth Chamber),
composed of T. von Danwitz, President of the Chamber, E. Juhsz, A. Rosas (Rapporteur),
D. !vby and C. Vajda, Judges,
Advocate General: Y. Bot,
Registrar: M. Aleksejev, Administrator,
having regard to the written procedure and further to the hearing on 20 June 2013,
after considering the observations submitted on behalf of:

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Mr Glatzel, by E. Giebler, Rechtsanwalt,

Freistaat Bayern, by M. Niese, acting as Agent,

the German Government, by T. Henze and K. Petersen, acting as Agents,

the European Parliament, by A. Troupiotis and P. Schonard, acting as Agents,

the Council of the European Union, by E. Karlsson, R. Wiemann and Z. Kup"ov,


acting as Agents,

the European Commission, by G. Braun and J. Hottiaux, acting as Agents,

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after hearing the Opinion of the Advocate General at the sitting on 18 July 2013,
gives the following
Judgment
1

This request for a preliminary ruling concerns the compatibility of point 6.4 of Annex III to
Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006
on driving licences (OJ 2006 L 403, p. 18 and corrigendum OJ 2009 L 19, p. 67), as
amended by Commission Directive 2009/113/EC of 25 August 2009 (OJ 2009 L 223,
Directive 2006/126), with Articles 20, 21(1) and 26 of the Charter of Fundamental Rights
of the European Union (the Charter), concerning the minimum standards relating to the
physical fitness to drive a motor vehicle as regards visual acuity.

The request has been made in proceedings between Mr Glatzel and Freistaat Bayern
concerning the decision by which Mr Glatzel was refused a driving licence for vehicles in
categories C1 and C1E, as defined by Directive 2006/126, on the ground that the visual
acuity in his worse eye does not reach the minimum level required in point 6.4 of Annex III
to that directive.
Legal context
International law

The United Nations Convention on the Rights of Persons with Disabilities, which was
approved on behalf of the European Community by Council Decision 2010/48/EC of
26 November 2009 (OJ 2010 L 23, p. 35) (the UN Convention on Disabilities), states in
recital (e) in the preamble thereto:
The States Parties to the present Convention,

(e)

Recognising that disability is an evolving concept and that disability results from the
interaction between persons with impairments and attitudinal and environmental
barriers that hinders their full and effective participation in society on an equal basis
with others.

Under Article 1 of that convention, entitled Purpose:


The purpose of the present Convention is to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with disabilities,
and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or
sensory impairments which in interaction with various barriers may hinder their full and
effective participation in society on an equal basis with others.

5
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Article 2 of that convention, entitled Definitions, provides:


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For the purposes of this convention:

Discrimination on the basis of disability means any distinction, exclusion or restriction on


the basis of disability which has the purpose or effect of impairing or nullifying the
recognition, enjoyment or exercise, on an equal basis with others, of all human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field. It
includes all forms of discrimination, including denial of reasonable accommodation;

Article 4 of the UN Convention on Disabilities, entitled General obligations, states:


1.
States Parties undertake to ensure and promote the full realisation of all human rights
and fundamental freedoms for all persons with disabilities without discrimination of any
kind on the basis of disability. To this end, States Parties undertake:
(a)

To adopt all appropriate legislative, administrative and other measures for the
implementation of the rights recognised in the present Convention;

(b)

To take all appropriate measures, including legislation, to modify or abolish existing


laws, regulations, customs and practices that constitute discrimination against persons
with disabilities;

(c)

To take into account the protection and promotion of the human rights of persons with
disabilities in all policies and programmes;

(d)

To refrain from engaging in any act or practice that is inconsistent with the present
Convention and to ensure that public authorities and institutions act in conformity with
the present Convention;

(e)

To take all appropriate measures to eliminate discrimination on the basis of disability


by any person, organisation or private enterprise;

Under Article 5 of that convention, entitled Equality and non-discrimination:


1.
States Parties recognise that all persons are equal before and under the law and are
entitled without any discrimination to the equal protection and equal benefit of the law.
2.
States Parties shall prohibit all discrimination on the basis of disability and guarantee
to persons with disabilities equal and effective legal protection against discrimination on all
grounds.
3.
In order to promote equality and eliminate discrimination, States Parties shall take all
appropriate steps to ensure that reasonable accommodation is provided.
4.
Specific measures which are necessary to accelerate or achieve de facto equality of
persons with disabilities shall not be considered discrimination under the terms of the
present convention.

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Article 27(1)(a) of that convention, entitled Work and employment, provides:


States Parties recognise the right of persons with disabilities to work, on an equal basis with
others; this includes the right to the opportunity to gain a living by work freely chosen or
accepted in a labour market and work environment that is open, inclusive and accessible to
persons with disabilities. States Parties shall safeguard and promote the realisation of the
right to work, including for those who acquire a disability during the course of employment,
by taking appropriate steps, including through legislation, to, inter alia:
(a)

prohibit discrimination on the basis of disability with regard to all matters concerning
all forms of employment, including conditions of recruitment, hiring and employment,
continuance of employment, career advancement and safe and healthy working
conditions.

European Union law


9

According to recital 8 in the preamble to Directive 2006/126:


On road safety grounds, the minimum requirements for the issue of a driving licence should
be laid down. Standards for driving tests and licensing need to be harmonised. To this end
the knowledge, skills and behaviour connected with driving motor vehicles should be
defined, the driving test should be based on these concepts and the minimum standards of
physical and mental fitness for driving such vehicles should be redefined.

10

Recital 14 in the preamble to that directive states:


Specific provisions should be adopted to make it easier for physically disabled persons to
drive vehicles.

11

Recital 19 in the preamble to the directive states:


The Commission should be allowed to undertake the adaptation of Annexes I to VI to
scientific and technical progress.

12

Article 4 of Directive 2006/126, entitled Categories, definitions and minimum ages,


provides:
1.
The driving licence provided for in Article 1 shall authorise the driving of powerdriven vehicles in the categories defined hereafter.

4.

motor vehicles:

(d)

Category C1:

motor vehicles other than those in categories D1 or D, the maximum authorised mass of
which exceeds 3 500 kg, but does not exceed 7 500 kg, and which are designed and
constructed for the carriage of no more than eight passengers in addition to the driver;
motor vehicles in this category may be combined with a trailer having a maximum
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authorised mass not exceeding 750 kg;


(e)

Category C1E:

without prejudice to the provisions of type-approval rules for the vehicles


concerned, combinations of vehicles where the tractor vehicle is in category C1
and its trailer or semi-trailer has a maximum authorised mass of over 750 kg
provided that the authorised mass of the combination does not exceed 12 000 kg,

without prejudice to the provisions of type-approval rules for the vehicles


concerned, combinations of vehicles where the tractor vehicle is in category B
and its trailer or semi-trailer has an authorised mass of over 3 500 kg, provided
that the authorised mass of the combination does not exceed 12 000 kg,

the minimum age for categories C1 and C1E is fixed at the age of 18 years,
without prejudice to the provisions for the driving of such vehicles in Directive
2003/59/EC of the European Parliament and of the Council of 15 July 2003 on
the initial qualification and periodic training of drivers of certain road vehicles
for the carriage of goods or passengers [amending Council Regulation (EEC)
No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive
76/914/EEC (OJ 2003 L 226, p. 4)];

13

Under Article 7 of that directive, entitled Issue, validity and renewal:


1.

Driving licences shall be issued only to those applicants:

(a)

who have passed a test of skills and behaviour and a theoretical test and who meet
medical standards, in accordance with the provisions of Annexes II and III;

3.
The renewal of driving licences when their administrative validity expires shall be
subject to:
(a)

continuing compliance with the minimum standards of physical and mental fitness for
driving set out in Annex III for driving licences in categories C, CE, C1, C1E, D, DE,
D1, D1E;

14

Article 8 of that directive, entitled Adaptation to scientific and technical progress,


provides:
The amendments necessary to adapt Annexes I to VI to scientific and technical progress
shall be adopted in accordance with the procedure referred to in Article 9(2).

15

Under Article 9 of Directive 2006/126, entitled Committee:


1.

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The Commission shall be assisted by the committee on driving licences.

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2.
Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of
Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
16

Annex III to Directive 2006/126 concerns the minimum standards of physical and mental
fitness for driving a power-driven vehicle, including the requirements covering eyesight. For
the purposes of that annex, drivers are classified in two groups, namely group 1, comprising
drivers of vehicles in categories A, A1, A2, AM, B, B1, and group 2, comprising drivers of
vehicles in categories C, CE, C1, CIE, D, DE, D1 and D1E.

17

As regards medical examinations for eyesight, Annex III to directive 2006/126 provides as
follows :
6.

All applicants for a driving licence shall undergo an appropriate investigation to


ensure that they have adequate visual acuity for driving power-driven vehicles. Where
there is reason to doubt that the applicants vision is adequate, he/she shall be
examined by a competent medical authority. At this examination attention shall be
paid, in particular, to the following: visual acuity, field of vision, twilight vision, glare
and contrast sensitivity, diplopia and other visual functions that can compromise safe
driving.

For group 1 drivers, licensing may be considered in exceptional cases where the visual
field standard or visual acuity standard cannot be met; in such cases the driver should
undergo examination by a competent medical authority to demonstrate that there is no
other impairment of visual function, including glare, contrast sensitivity and twilight
vision. The driver or applicant should also be subject to a positive practical test
conducted by a competent authority.
Group 1:
6.1

Applicants for a driving licence or for the renewal of such a licence shall have a
binocular visual acuity, with corrective lenses if necessary, of at least 0,5 when using
both eyes together.
Moreover, the horizontal visual field should be at least 120 degrees, the extension
should be at least 50 degrees left and right and 20 degrees up and down. No defects
should be present within a radius of the central 20 degrees.
When a progressive eye disease is detected or declared, driving licences may be issued
or renewed subject to the applicant undergoing regular examination by a competent
medical authority

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6.2

Applicants for a driving licence, or for the renewal of such a licence, who have total
functional loss of vision in one eye or who use only one eye (e.g. in the case of
diplopia) must have a visual acuity of at least 0,5, with corrective lenses if necessary.
The competent medical authority must certify that this condition of monocular vision
has existed for a sufficiently long time to allow adaptation and that the field of vision
in this eye meets the requirement laid down in paragraph 6.1.

6.4

After any recently developed diplopia or after the loss of vision in one eye, there
should be an appropriate adaptation period (for example, six months), during which
driving is not allowed. After this period, driving is only allowed following a
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favourable opinion from vision and driving experts.


Group 2:
6.4

Applicants for a driving licence or for the renewal of such a licence shall have a
visual acuity, with corrective lenses if necessary, of at least 0,8 in the better eye and at
least 0,1 in the worse eye. If corrective lenses are used to attain the values of 0,8 and
0,1, the minimum acuity (0,8 and 0,1) must be achieved either by correction by means
of glasses with a power not exceeding plus eight dioptres, or with the aid of contact
lenses. The correction must be well tolerated.

Moreover, the horizontal visual field with both eyes should be at least 160 degrees, the
extension should be at least 70 degrees left and right and 30 degrees up and down. No
defects should be present within a radius of the central 30 degrees.
Driving licences shall not be issued to or renewed for applicants or drivers suffering from
impaired contrast sensitivity or from diplopia.
After a substantial loss of vision in one eye, there should be an appropriate adaptation period
(for example six months) during which the subject is not allowed to drive. After this
period, driving is only allowed after a favourable opinion from vision and driving
experts.
18

According to point 1.3 of Annex III to Directive 2006/126, the Member States may provide
for the provisions set out in that Annex for Group 2 drivers to apply to drivers of Category B
vehicles using their driving licence for professional purposes (taxis, ambulances, etc.).

19

Furthermore, under point 5 of that annex, as regards group 2, the standards set by Member
States for the issue or any subsequent renewal of driving licences may be stricter than those
set out in that annex.
German law

20

The first sentence of Paragraph 2(2) of the German Road Traffic Law
(Straenverkehrsgesetz), in the version published on 5 March 2003 (BGBl. 2003 I, p. 310,
corrigendum p. 919), as amended most recently by Paragraph 2(118) of the Law of
22 December 2011 (BGBl. 2011 I, p. 3044, the StVG), is worded as follows:
A driving licence must be issued for the category concerned where the applicant

3.

is fit to drive motor vehicles,

21

The first sentence of Paragraph 2(4) of the STVG defines fitness as follows:
Any person who satisfies the physical and mental requirements for driving power-driven
vehicles who has not committed any serious or repeated offences against the road traffic
provisions or the provisions of criminal law is to be deemed fit to drive power-driven

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vehicles.
22

The specific requirements which must be satisfied in order for a person to be deemed fit to
drive power-driven vehicles are laid down in the Regulation on the authorisation of persons
to drive on the highway (the Regulation on driving licences) (Verordnung ber die
Zulassung von Personen zum Straenverkehr (Fahrerlaubnis-Verordnung) of 13 December
2010 (BGBl. 2010 I, p. 1980), as amended most recently by the Regulation of 26 June 2012
(BGBl. I, p. 1394).

23

As regards vision, Paragraph 12(1) of that regulation provides:


For the purposes of driving power-driven vehicles the applicants vision must satisfy the
requirements laid down in Annex 6.

24

Point 2.2.1 of Annex 6 to that regulation provides :


Central daytime visual acuity:
Any sight defect must be corrected, provided that such correction is possible and well
tolerated, so as to comply with the following minimum values of visual acuity: acuity of the
better eye or binocular visual acuity of 0,8; acuity in the worse eye of 0,5,

In certain special cases, taking into account driving experience and the use of the vehicle, the
visual acuity of the worse eye may be less than 0,5 for categories C, CE, C1 and C1E,
provided that it is no less than 0,1. An ophthalmological examination is necessary in such
cases.
The facts of the dispute and the question referred for a preliminary ruling

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25

Mr Glatzel, who was born in 1959, lost his driving licence, by a judgment delivered in April
2010, on the ground that he had driven under the influence of alcohol.

26

By an administrative decision dating from November 2010, the Landratsamt Schwandorf


partially upheld Mr Glatzels application for a new driving licence authorising him to drive
motor vehicles in categories A, A1 and BE, as defined in Directive 2006/126, and those in
certain national categories granting the right to drive bicycles with a backup engine, light
motorcycles, light motor vehicles with a maximum design speed of 45 km/h and tractors for
building sites or agricultural purposes with a maximum design speed of 25 km/h and 32
km/h respectively.

27

However, by the same decision, Mr Glatzels application for a new driving licence for
categories C1 and C1E, in particular, heavy goods vehicles, was refused. The Landsratsamt
Schwandorf justified the refusal on the ground that an ophthalmological examination had
revealed that Mr Glatzel suffered from unilateral amblyopia, involving a substantial
functional loss of vision in one eye. Although his central visual acuity in his left eye is 1,0
and therefore he has full visual acuity, and his binocular visual acuity is also 1,0, during the
examination, Mr Glatzel was able to detect only hand movements with his right eye.
Consequently, the visual acuity in Mr Glatzels right eye does not satisfy the requirements

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laid down by German law for the issue of a driving licence for vehicles in the latter
categories.

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28

Following an unsuccessful objection against that decision, Mr Glatzel brought an action


before the Verwaltungsgericht Regensburg (Administrative Court, Regensburg). Since that
court dismissed his action, Mr Glatzel brought an appeal against that judgment before the
referring court, the Bayerischer Verwaltungsgerichtshof.

29

The Bayerischer Verwaltungsgerichtshof ordered measures of inquiry and, in particular,


requested an expert report from an ophthalmological service in order to establish the current
state of Mr Glatzels eyesight, and whether and, to what extent, he is able to compensate for
any existing deficiencies, in this case in relation to his spatial vision, and whether those
abilities to compensate exist independently of his will. Furthermore, by means of another
expert report, the referring court seeks to establish, from a scientific point of view, there are
proper grounds for refusing to issue a driving licence for categories C1 and C1E to persons
with monocular vision for anatomical or functional reasons, even where it has been
established that those persons are able to compensate sufficiently for any impairments in
their vision. That court also seeks to establish which requirements must, where appropriate,
be satisfied in order to ensure that the driving of vehicles in those categories by such persons
poses no additional threat to road safety as compared with the driving of persons whose
vision is in no way impaired.

30

In addition, at the hearing before the referring court, the experts expressed their view as to
the likelihood of any loss of vision in one eye where the person concerned is driving a
vehicle in category C1 and C1E, and whether such a loss of vision may occur so suddenly
that the driver needs a residual visual acuity of 0,1, which he has in the other eye, in order to
stop the vehicle on the side of the road.

31

On the basis of the information thus obtained, the Bayerischer Verwaltungsgerichtshof takes
the view that Mr Glatzels appeal should be upheld, that is to say the administrative
decisions and the judgment given by the Verwaltungsgericht Regensburg should be set aside
and that he should be issued with a driving licence for vehicles in categories C1 and C1E.
That court observes that there is no ground on which to prohibit persons who have a visual
acuity of less than 0,1 in one eye from driving a motor vehicle where, first, they have
binocular vision, second, their field of binocular vision satisfies the requirements laid down
in point 6.4 of Annex III to Directive 2006/126 and, third, they have learned fully to
compensate for their lack of spatial vision.

32

With regard to the last mentioned point, the referring court states that a person with
defective spatial vision adapts to that deficiency, where it appears during his life, within six
months at the latest. Such adaptation, which, moreover, does not depend on the voluntary
practice of certain behaviour by the person concerned, happens a fortiori where he suffers
from a substantial visual impairment from birth, as in Mr Glatzels case. Thus, the
requirement laid down in point 6.4 of Annex III to Directive 2006/126, according to which
group 2 drivers must have visual acuity of at least 0,1, is not based on the idea of addressing
the lack of spatial vision of the persons concerned but to enable the driver of a motor vehicle
in one of those categories to react to a sudden loss of vision in the better eye during a
journey and to stop the vehicle on the side of the road using his residual vision.

33

The referring court states that the requirement of such residual visual acuity for the worse

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eye is objectively justified only with regard to persons who do not have binocular vision or
whose field of binocular vision does not satisfy the requirements of point 6.4 of Annex III to
Directive 2006/126. However, a person such as Mr Glatzel, who has a normal field of vision
and whose visual impairments affect, in particular, his central visual acuity, would be
capable of seeing objects appearing in his field of peripheral vision in essentially the same
way as a person with normal vision and, would, therefore, be able to stop the power-driven
vehicle he was driving even by using only his residual vision. The referring court adds that it
is extremely rare that drivers of heavy goods vehicles lose the vision in one eye so suddenly
that they must rely exclusively on their residual vision in the other eye to stop the vehicle.
34

The Bayerischer Veraltungsgerichtshof takes the view that the requirement laid down in
point 6.4 of Annex III to Directive 2006/126 constitutes an interference with the
fundamental rights guaranteed by Articles 20, 21(1) and 26 of the Charter, which concern
equality before the law, non-discrimination on grounds of disability and the integration of
persons with disabilities.

35

In particular, the fact that it is impossible for persons such as Mr Glatzel to have access to
professional activities, the exercise of which in law or in practice requires authorisation to
drive vehicles in categories C1 and C1E, constitutes discrimination on grounds of the
disability of the person concerned. Furthermore, the differences between the requirements
laid down by Annex III to Directive 2006/126 relating to the vision of applicants for the
issue or renewal of driving licences according to whether they fall within group 1 or group 2,
constitute an infringement of equal treatment. In any event, the referring court explains that
the requirement of minimum visual acuity of 0,1 cannot be justified in certain situations and
that an alternative more proportionate solution consists in the possibility of an individual
examination to ascertain the ability to drive vehicles in categories C1 and C1E by a person
with amblyopia, in the same way as for drivers of vehicles in group I of Annex III to
Directive 2006/126.

36

In those circumstances, the Bayerischer Verwaltungsgerichtshof decided to stay the


proceedings and to refer the following question to the Court for a preliminary ruling:
Is point 6.4 of Annex III to [Directive 2006/126] compatible with Article 20, Article 21(1)
and Article 26 of the [Charter] in so far as that provision requires without permitting any
derogation that applicants for Category C1 and Category C1E driving licences have a
minimum visual acuity of 0,1 in their worse eye even if those persons use both eyes together
and have a normal field of vision when using both eyes?
The question referred for a preliminary ruling

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37

By its question, the referring court essentially asks the Court to determine the validity of
point 6.4 of Annex III to Directive 2006/126, which concerns the minimum standards for the
drivers of vehicles in categories C1 and C1E, in particular heavy goods vehicles, in the light
of Articles 20, 21(1) and 26 of the Charter concerning equality before the law,
non-discrimination on grounds of disability, and the integration of persons with disabilities.

38

In particular, the referring court considers that the requirement that the drivers of powerdriven vehicles in categories C1 and C1E must have a minimum visual acuity of 0,1 for the
worse eye, constitutes discrimination on the grounds of disability in respect of persons who

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do not have such visual acuity, since they have binocular vision and a field of vision
sufficient for both eyes. Such a requirement for visual acuity is also incompatible with the
principle of integration of persons with disabilities and is contrary to the UN Convention on
Disabilities.
39

In addition, that court states that, under point 6 of Annex III to Directive 2006/126, group 1
drivers, that is drivers of lighter motor vehicles may be issued a driving licence in
exceptional cases even if they do not satisfy the standards relating to the field of vision or
visual acuity. However, group 2 drivers, including those applying for a driving licence for
the C1 and C1E vehicle categories, who have visual acuity of less than 0,1 for the worse eye
cannot be issued with a driving licence. Thus, the right of those drivers to equal treatment
before the law is infringed in so far as the directive does not provide for any possibility for
an individual medical examination to show that, although the drivers concerned do not
satisfy the required standards, road safety is not compromised.

40

In order to answer the question referred by the national court, it is necessary to determine,
first of all, whether the EU legislature infringed the right to nondiscrimination laid down in
Article 21(1) of the Charter when it adopted the threshold for visual acuity in point 6.4 of
Annex III to Directive 2006/126. It is also necessary to examine the possible effects on that
provision of the UN Convention on Disabilities. Second, it must be determined whether
Article 26 of the Charter, which enshrines the principle of integration of persons with
disabilities, precludes point 6.4 of Annex III to Directive 2006/126, the validity of which is
challenged. Third, it must be determined whether it is contrary to Article 20 of the Charter,
according to which everyone is equal before the law, that drivers of certain heavy goods
vehicles do not have the opportunity to show, by means of an individual medical
examination, that they are fit to drive such vehicles, even in the absence of certain physical
capacities required by Directive 2006/126, whereas other drivers of certain other types of
vehicles have such a possibility.
The requirement of non-discrimination against persons with disabilities laid down in
Article 21 of the Charter

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41

It must be determined whether the EU rules at issue in the main proceedings, laying down
requirements for visual acuity for the drivers of power-driven vehicles in categories C1 and
C1E is contrary to Article 21(1) of the Charter, according to which [a]ny discrimination
based on any ground such as disability shall be prohibited.

42

It should first be noted, first of all, that Article 52(1) of the Charter provides that any
limitation on the exercise of the rights and freedoms recognised by the Charter must be
provided for by law and must respect the essence of those rights and freedoms. Subject to
the principle of proportionality, limitations may be imposed only if they are necessary and
genuinely meet objectives of general interest recognised by the Union or the need to protect
the rights and freedoms of others.

43

The principle of equal treatment is a general principle of EU law, enshrined in Article 20 of


the Charter, of which the principle of non-discrimination laid down in Article 21(1) of the
Charter is a particular expression. According to settled case-law, that principle requires the
EU legislature to ensure, in accordance with Article 52(1) of the Charter, that comparable
situations must not be treated differently and that different situations must not be treated in
the same way unless such treatment is objectively justified (see, to that effect, Case

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C550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission EU:C:2010:512,


paragraphs 54 and 55 and the case-law cited). A difference in treatment is justified if it is
based on an objective and reasonable criterion, that is, if the difference relates to a legally
permitted aim pursued by the legislation in question, and it is proportionate to the aim
pursued by the treatment concerned (Case C127/07 Arcelor Atlantique and Lorraine and
Others EU:C:2008:728, paragraph 47, and Case C101/12 Schaible EU:C:2013:661,
paragraph 77).

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44

Next, as regards the specific question of discrimination on grounds of disability, the notion
of disability is not defined by the Charter itself.

45

In its case-law on equal treatment in the area of employment and occupation, the Court has
already held that the definition of disability must be understood, for the purposes of
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation (OJ 2000 L 303, p. 16) read in the light of
the UN Convention on Disabilities, as long-term physical, mental or psychological
impairments which in interaction with various barriers may hinder the full and effective
participation of the person concerned in professional life on an equal basis with other
workers (Joined Cases C335/11 and C33711 HK Danmark EU:C:2013:222, paragraphs 37
to 39; Case C312/11 Commission v Italy EU:C:2013:446, paragraph 56; and Case C363/12
Z EU:C:2014:159, paragraph 76).

46

In those circumstances, it must be held, as far as concerns the issue of discrimination on


grounds of disability, that Article 21(1) of the Charter requires the EU legislature, in
particular, not to apply any difference in treatment on the basis of a limitation resulting, in
particular, from long-term physical, mental or psychological impairments which in
interaction with various barriers may hinder the full and effective participation of the person
concerned in professional life on an equal basis with other persons, unless such a difference
in treatment is objectively justified.

47

As regards persons like Mr Glatzel, who suffer from a long-term sensory impairment and
who have visual acuity of less than 0,1 in the worse eye, it must be observed that those
persons do not fulfil the medical requirements in Annex III to Directive 2006/126 and,
therefore, cannot be issued with a driving licence, in particular for the vehicle categories C1
and C1E. However, it must be held that while, according to the information in the order for
reference, the visual acuity in Mr Glatzels worse eye is very weak, the fact remains that
when he uses both eyes, he has a binocular visual acuity of 1,0, that is, full acuity. In that
regard, the Court does not have sufficient information to ascertain whether such impairment
constitutes a disability within the meaning of Article 21(1) of the Charter.

48

It is not necessary for the purpose of determining the validity of Directive 2006/126, in the
light of Article 21(1) of the Charter, to determine definitively whether, in the case in the
main proceedings, Mr Glatzel is considered to have a disability within the meaning of that
provision. Even if the state of a person like Mr Glatzel could be considered as falling within
the definition of disability within the meaning of the Charter, the difference in treatment
consisting in not issuing him with a driving licence for vehicles in categories C1 and C1E on
the ground that his visual acuity is insufficient may be objectively justified in the light of
overriding considerations of road safety.

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49

In that connection, it must be recalled that the Court has already held, as regards the general
principle of equal treatment in the context of grounds such as age or sex, that a difference of
treatment which is based on a characteristic related to such grounds does not constitute
discrimination that is to say, an infringement of Article 21(1) of the Charter where, by
reason of the nature of the particular occupational activities concerned or of the context in
which they are carried out, such a characteristic constitutes a genuine and determining
occupational requirement, provided that the objective is legitimate and the requirement is
proportionate (see, to that effect, as regards discrimination on grounds of age, Case C229/08
Wolf EU:C:2010:3, paragraph 35, and Case C447/09 Prigge and Others EU:C:2011:573,
paragraph 66; and, as regards discrimination based on sex, Case 222/84 Johnston
EU:C:1986:206, paragraph 40, and Case C273/97 Sirdar EU:C:1999:523, paragraph 25).

50

In the same vein, it must be held, for the purposes of the present case, that a difference in
treatment applied to a person according to whether or not he has the visual acuity necessary
to drive power-driven vehicles is not, in principle, contrary to the prohibition on
discrimination based on disability within the meaning of Article 21(1) of the Charter, in so
far as such a requirement actually fulfils an objective of public interest, is necessary and is
not a disproportionate burden.

51

In that connection, according to settled case-law, the improvement of road safety is an


objective of general interest of the European Union (see, to that effect, inter alia, Case
C55/93 van Schaik EU:C:1994:363, paragraph 19; Case C451/99 Cura Anlagen
EU:C:2002:195, paragraph 59; Case 54/05 Commission v Finland EU:C:2007:168,
paragraph 40; Case C110/95 Commission v Italy EU:C:2009:66, paragraph 60; Case
C384/08 Attanasio Group EU:C:2010:133, paragraph 50; Case C438/08 Commission v
Portugal EU:C:2009:651, paragraph 48; Case C184/10 Grasser EU:C:2011:324,
paragraph 26; and Case C224/10 Apelt EU:C:2011:655, paragraph 47). By laying down, in
Annex III thereto, a minimum threshold of visual acuity for the worse eye for drivers in
group 2, for the purposes of that annex, Directive 2006/126 aims to improve road safety and
thus to attain an objective of general interest.

52

As far as concerns judicial review of the requirements of the principle of proportionality


relating to the minimum standards for the visual acuity necessary to drive power-driven
vehicles, it must be observed that, as regards complex medical assessments such as those at
issue in the main proceedings, the EU legislature has a broad discretion and review by the
Court is limited to verifying whether there has been a manifest error of assessment or a
misuse of powers, or whether the legislature has manifestly exceeded the limits of its
discretion (see, to that effect Case C425/08 Enviro Tech (Europe) EU:C:2009:635,
paragraph 47; Case C343/09 Afton Chemical EU:C:2010:419, paragraph 28; and Case
C15/10 Etimine EU:C:2011:504, paragraph 60).

53

However, the fact remains that, in cases involving such discretion the EU legislature must
base its choice on objective criteria (see, Case C58/08 Vodafone and Others
EU:C:2010:321, paragraph 53) and it must ensure that fundamental rights are observed (see,
to that effect, Joined Cases C92/09 and C93/09 Volker und Markus Schecke and Eifert
EU:C:2010:662, paragraph 46; and Case C236/09 Association belge des Consommateurs
Test-Achats and Others EU:C:2011:100, paragraph 17).

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54

As regards the necessity of the minimum standards for vision of drivers of power-driven
vehicles, it is essential, in order to ensure road safety, that the persons to whom a driving
licence is issued possess sufficient physical capabilities, in particular with respect to their
vision, in so far as physical defects may have significant consequences (see, by analogy, as
regards airline pilots, Prigge and Others EU:C:2011:573, paragraph 67). It is well known
that vision is essential for the purposes of driving power-driven vehicles and, accordingly,
the more that function is reduced, the more it becomes necessary to take into consideration
requirements relating to road safety.

55

Although the prohibition on issuing driving licences applied for to persons whose visual
acuity has not reached a certain level is necessary and indeed constitutes an effective means
of improving road safety by excluding those persons from traffic, the fact remains that such
a prohibition must not constitute a disproportionate burden.

56

Thus, in a case such as that in the main proceedings, the principle of proportionality
requires, in particular, the principle of equal treatment to be reconciled as far as possible
with the requirements of road safety which determine the conditions for driving motor
vehicles (see, by analogy, Johnston EU:C:1986:206, paragraph 38; Sirdar EU:C:1999:523,
paragraph 26; and Case C285/98 Kreil EU:C:2000:2, paragraph 23).

57

Therefore, it must be determined whether point 6.4 of Annex III to Directive 2006/126,
which lays down the threshold of visual acuity of 0,1 for drivers of motor vehicles in group
2 for the purposes of that annex, is not disproportionate in relation to the objective pursued.

58

It must be recalled that the minimum standards for physical and mental fitness for driving
power-driven vehicles in Annex III to Directive 2006/126 were laid down, as is clear from
recital 8 in the preamble thereto, on road safety grounds, in accordance with Article 91(1)(c)
TFEU.

59

The committee on driving licences, established pursuant to Article 9 of Directive 2006/126,


set up a the Eyesight working group which published the report New standards for the
visual functions of drivers in May 2005. According to that report, although strict
requirements for vision better serve the objective of road safety, those requirements should
not be such that they exclude persons from driving power-driven vehicles without good
reason, given the fundamental importance, both socially and economically of that activity in
modern society.

60

In that report, the experts in the working group, while admitting a lack of research data to
determine the minimum values for visual acuity, took the view that, as regards group 2
drivers, for the purposes of Annex III to Directive 2006/126, that is, in particular, drivers of
heavy goods vehicles, the minimum value of 0,5 for visual acuity in the worse eye, required
by that directive, was no longer justified. However, although they took the view that it is
possible to support the argument that driving motor vehicles is a binocular activity and that,
accordingly, no requirement concerning monocular visual acuity could be formulated for
drivers in group 2, the Eyesight working group concluded that the greater responsibility of
group 2 drivers supports the requirement for those drivers to have a spare eye to be able, if
necessary, to stop the vehicle they are driving on the side of the road using the worse eye.

61

Following those proposals by the Eyesight working group, the EU legislature amended
Annex III to Directive 2006/126, so that the minimum threshold for visual acuity required

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for the worse eye for group 2 drivers, for the purposes of that annex, was reduced from 0,5
to 0,1. Furthermore, in its report, the Eyesight working group also specifically mentions the
effects of amblyopie for the drivers of power-driven vehicles.

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62

That being so, it appears that the EU legislature amended that annex in the light of that
knowledge and attempted to limit as much as possible any interference with the rights of
persons suffering from visual defects.

63

However, it is clear from the order for reference that, for the referring court, even the
threshold of 0,1, adopted by Directive 2006/126, appears excessive.

64

As far as concerns the determination of that minimum value relating to visual acuity
required by Directive 2006/126, it must be recalled that the EU legislature has a broad
discretion as to complex medical questions, such as those relating to the visual acuity
necessary to drive power-driven vehicles. In such a context, the European Union judicature
cannot substitute its assessment of scientific and technical facts for that of the legislature on
which the founding treaties have conferred that task (with regard to the latter, see, inter alia,
Afton Chemical EU:C:2010:419, paragraph 28).

65

Moreover, the Eyesight working group notes in its report a lack of scientific studies on
several aspects of eyesight for drivers of power-driven vehicles. In that connection,
according to the case-law of the Court, where there is uncertainty as to the existence or
extent of risks to the health of individuals, the EU legislature may take protective measures
without having to wait until the reality and the seriousness of those risks become fully
apparent (see, to that effect, Case C180/96 United Kingdom v Commission EU:C:1998:192,
paragraph 99; Case C192/01 Commission v Denmark EU:C:2003:492, paragraph 49; and
Case C77/09 Gowan Comrcio Internacional e Servios EU:C:2010:803, paragraph 73).

66

Given the close connection between road safety and the protection of the health of road
users, where the EU legislature adapts the minimum standards on visual acuity to scientific
and technical progress, in accordance with Article 8 of Directive 2006/126, it is open to it, in
the provision of scientific uncertainties, to give priority to considerations relating to the
improvement of road safety. Thus, the fact that the legislature, concerned not to jeopardise
road safety, has decided not to eliminate all minimum requirements for visual acuity of the
worse eye for group 2 drivers, for the purposes of Annex III to that directive, cannot make
the adaptation measure disproportionate.

67

Finally, the referring court states that the fact that Mr Glatzel has not received the driving
licence applied for may constitute discrimination within the meaning of Article 2 of the UN
Convention on Disabilities. It is clear, in particular, from the wording of that article, entitled
Definitions, that discrimination based on disability includes all forms of discrimination
including the refusal of reasonable accommodation.

68

In that connection, it must be recalled that the European Union approved the UN
Convention on Disabilities by Decision 2010/48. Consequently, the provisions of that
convention are, from the time of its entry into force, an integral part of the European Union
legal order (see Case 181/73 Haegeman EU:C:1974:41, paragraph 5, and Z EU:C:2014:159,
paragraph 73). Furthermore, it is clear from the appendix to Annex II to Decision 2010/48
that, as regards personal mobility, Directive 2006/126 is one of the legal acts of the
European Union which refer to matters governed by that convention.
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69

However, as is clear from the case-law of the Court, since the provisions of the UN
Convention on Disabilities are subject, in their implementation or their effects, to the
adoption of subsequent acts of the contracting parties, the provisions of that convention do
not constitute, from the point of view of their content, unconditional and sufficiently precise
conditions which allow a review of the validity of the measure of EU law in the light of the
provisions of that convention (see, to that effect, Z EU:C:2014:159, paragraphs 89 and 90).

70

However, the fact remains that, according to the case-law of the Court, the primacy of
international agreements concluded by the European Union over provisions of secondary
legislation means that such provisions must, so far as is possible, be interpreted in a manner
that is consistent with those agreements (see, inter alia, Case C61/94 Commission v
Germany EU:C:1996:313, paragraph 52; HK Danmark EU:C:2013:222 paragraph 29; and Z
EU:C:2014:159, paragraph 72).

71

It must be held that point 6.4 of Annex III to Directive 2006/126 provides unequivocally
that drivers of motor vehicles in categories C1 and C1E must have minimum visual acuity of
0,1 for the worse eye. In those circumstances, it does not appear possible to give that
provision of secondary law an interpretation which would enable it to circumvent the clear
rule laying down that minimum value.

72

It follows from all of the foregoing considerations that the EU legislature, by laying down
the provision whose validity is challenged, has weighed the requirements of road safety and
the right of persons affected by a visual disability to non-discrimination in a manner which
cannot be regarded as disproportionate in relation to the objectives pursued.

73

Having regard to all of the foregoing considerations, it must be held that consideration of
the question referred does not reveal any information capable of affecting the validity of
point 6.4 of Annex III to Directive 2006/126 in the light of Article 21(1) of the Charter.
The integration of persons with disabilities laid down in Article 26 of the Charter

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74

It must be recalled, as is clear from Article 52(5) and (7) of the Charter and the
Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17)
concerning Articles 26 and 52(5) of the Charter, that reliance on Article 26 thereof before
the court is allowed for the interpretation and review of the legality of legislative acts of the
European Union which implement the principle laid down in that article, namely the
integration of persons with disabilities.

75

As regards the implementation of that principle by Directive 2006/126, it is clear in


particular from the wording of recital 14 in the preamble thereto that [s]pecific provisions
should be adopted to make it easier for physically disabled persons to drive vehicles.
Likewise, Article 5(2) of that directive refers to the conditions for the issue of driving
licences to drivers with disabilities, in particular as regards the authorisation to drive adapted
vehicles.

76

Thus, in so far as Directive 2006/126 is a legislative act of the European Union


implementing the principle contained in Article 26 of the Charter, the latter provision is
intended to be applied to the case in the main proceedings.

77

Furthermore, by virtue of the second sentence of Article 51(1) of the Charter, the EU

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legislature is to observe and promote the application of the principles laid down in it. As
regards the principle of the integration of persons with disabilities, Article 26 of the Charter
states that the Union is to recognise and respect the right of persons with disabilities to
benefit from measures designed to ensure their independence, social and occupational
integration and participation in the life of the community.
78

Therefore, although Article 26 of the Charter requires the European Union to respect and
recognise the right of persons with disabilities to benefit from integration measures, the
principle enshrined by that article does not require the EU legislature to adopt any specific
measure. In order for that article to be fully effective, it must be given more specific
expression in European Union or national law. Accordingly, that article cannot by itself
confer on individuals a subjective right which they may invoke as such (see, to that effect, as
regards Article 27 of the Charter, Case C176/12 Association de mediation sociale
EU:C:2014:2, paragraphs 45 and 47).

79

Having regard to all of the foregoing considerations, it must be held that the consideration
of the question has not revealed any information capable of affecting the validity of Annex
III, paragraph 6.4 of Directive 2006/126 in the light of Article 26 of the Charter.
Equality before the law laid down in Article 20 of the Charter

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80

The referring court states that, for group 1 drivers under Annex III of Directive 2006/126,
who do not satisfy the standards relating, in particular, to visual acuity, the issue of a driving
licence may be envisaged in exceptional cases, where a driver submits to an individual
examination to test his fitness to drive. Thus, the fact that there is no such possibility for
group 2 drivers under that annex, may constitute a difference in treatment contrary to
Article 20 of the Charter.

81

As stated in paragraph 43 of the present judgment, that article, which is entitled Equality
before the law aims to ensure inter alia that comparable situations do not receive different
treatment.

82

Therefore, it must be ascertained whether the situation of drivers in group 1 under Annex III
of Directive 2006/126 and that of group 2 drivers under the same annex are comparable.

83

In that connection, as the Advocate General observed in point 62 of his Opinion, that the
EU legislature took care to create two categories of drivers on the basis of the size of the
vehicle, the number of passengers carried and the responsibilities which accordingly result
from driving such vehicles. The characteristics of the vehicles concerned, such as the size,
weight or manoeuvrability of those vehicles justify the existence of different conditions for
the issue of a driving licence in light of the way they are driven. Consequently, the situations
of those drivers of such vehicles are not comparable.

84

In so far as those situations are not comparable, a difference in treatment of the situations
concerned does not infringe the right of drivers in one or other of the groups to equality
before the law in Article 20 of the Charter.

85

Thus, since the situation of drivers in groups 1 and 2 is not comparable, Article 20 of the
Charter does not preclude Annex III, paragraph 6 to Directive 2006/126, in so far as that
paragraph allows drivers in group 1 to be issued with a driving licence in exceptional

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circumstances, even in the absence of a visual acuity satisfying the requirements laid down
by that directive for drivers in that group, but does not allow it for group 2 drivers.
86

Having regard to all of the foregoing considerations, it must be held that consideration of
the question does not reveal any information capable of affecting the validity of point 6.4 of
Annex III to Directive 2006/126 in the light of Articles 20, 21(1) or 26 of the Charter.
Costs

87

Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is a matter for that court. Costs
incurred in submitting observations to the Court, other than the costs of those parties, are not
recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
The examination of the question does not reveal any information capable of affecting
the validity of point 6.4 of Annex III to Directive 2006/126/EC of the European
Parliament and of the Council of 20 December 2006 on driving licences, as amended by
Commission Directive 2009/113/EC of 25 August 2009 in the light of Articles 20, 21(1)
or 26 of the Charter of Fundamental Rights of the European Union.
[Signatures]

* Language of the case: German.

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Fundamental rights and non-discrimination.


INTRODUCTION
The founding Treaties contained no specific provisions on fundamental rights. The credit
for gradually developing a system of guarantees for fundamental rights throughout the
European Union has to go to the Court of Justice.
The rulings given by the Court have been essentially based on:
Article 220 (ex Article 164) of the EC Treaty establishing the European Community,
which requires the Court to ensure that the law is observed in the interpretation and
application of the Treaty;
the political dimension of the Community, which is grounded in a European model
of society, including the protection of fundamental rights recognised by all Member
States.
By bringing fundamental rights to the fore, those who drafted the Treaty of Amsterdam
were endeavouring to give formal recognition to human rights. The provisions of the new
Treaty include the following:
Article 6 (ex Article F) of the EU Treaty has been amended so as to reaffirm the
principle of respect for human rights and fundamental freedoms;
a procedure is laid down for dealing with cases where a Member State has
committed a breach of the principles on which the Union is based;
more effective action is to be taken to combat not only discrimination based on
nationality but also discrimination based on sex, racial or ethnic origin, religion or
belief, disability, age or sexual orientation;
new provisions on equal treatment for men and women are inserted in the Treaty
establishing the European Community;
individuals are afforded greater protection with regard to the processing and free
movement of personal data;
the Final Act was accompanied by declarations on the abolition of the death
penalty, respect for the status of churches and philosophical or non-confessional
organisations, and on the needs of persons with a disability.
BACKGROUND
The place given to fundamental rights in the Community Treaties has changed
considerably since the European venture was first launched. At the outset, fundamental
rights were not a central concern of those who drafted the Paris and Rome Treaties,
which reflect a sectoral and functionalist approach. The Treaty of Paris, which
established the European Coal and Steel Community (ECSC), is concerned solely with

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the coal and steel industries. This sectoral approach gained strength after the failure, in
1954, of the European Defence Community (EDC) and the concomitant moves towards
political union. It thus became a feature of the Rome Treaties establishing the European
Atomic Energy Community (Euratom) and the European Economic Community (EEC).
Although the EEC Treaty was wider in scope than the other two, all three Treaties
covered well-defined economic spheres.
One consequence of this sectoral approach was to set the founding Treaties apart from
any basic law of a constitutional nature which incorporated a solemn declaration on
fundamental rights. The Treaties in question were not suited to the inclusion of such a
preamble, particularly since the Council of Europe's European Convention on Human
Rights (ECHR), signed in 1950, already provided an advanced model for the protection of
human rights in Europe.
The situation changed rapidly as the Court of Justice, in the judgments it handed down,
began to monitor the respect shown for fundamental rights by the Community institutions
and the Member States whenever they took action within the areas covered by
Community law. The Court recognised, for example, the right to property and the freedom
to engage in economic activity, which are essential to the smooth operation of the internal
market. The Court held that fundamental rights ranked as general principles of
Community law and that they were based on two:
the constitutional traditions of the Member States;
the international Treaties to which the Member States belonged (and the ECHR in
particular).
In 1977 the European Parliament, the Commission and the Council signed a Joint
Declaration in which they undertook to continue respecting the fundamental rights arising
from the two sources identified by the Court. In 1986 a further step was taken when the
preamble to the Single European Act included a reference to the promotion of democracy
on the basis of fundamental rights.
The EU Treaty states that "[t]he Union shall respect fundamental rights, as guaranteed by
the European Convention for the Protection of Human Rights and Fundamental
Freedoms signed in Rome on 4 November 1950 and as they result from the
constitutional traditions common to the Member States, as general principles of
Community law" (Article 6(2), ex Article F.2).
At the same time, the idea that the Community as such should accede to the ECHR had
begun to circulate. The Council decided to ask the Court's opinion on whether
membership of the Convention would be compatible with the Treaties. In its opinion of
28 March 1996 the Court held that, as Community law stood at that time, the Community
was not competent to accede to the Convention.
As European integration has progressed, the European Union has gradually widened its
field of action, reflecting the determination of the Member States to act as one in areas
which until now have been a strictly national preserve (e.g. internal security or the fight
against racism and xenophobia). In view of these changes, which necessarily go beyond
the sectoral context of the Community's early days and impinge on the daily life of
European citizens, there is a need for clear legal texts which proclaim respect for

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fundamental rights as a basic principle of the European Union. The Treaty of Amsterdam
meets this need.
PRINCIPLES
The Treaty of Amsterdam clarifies Article 6 (ex Article F) of the Treaty on European Union
by stating unequivocally that the Union is founded on the principles of liberty, democracy,
respect for human rights and fundamental freedoms, and the rule of law, principles which
are common to the Member States.
It also amends the preamble to the EU Treaty, confirming the Member States' attachment
to fundamental social rights as defined in the European Social Charter of 1961 and the
Community Charter of the Fundamental Social Rights of Workers of 1989.
Before the Treaty of Amsterdam entered into force, Article F.2 of the EU Treaty stressed
respect for the rights guaranteed by the ECHR and those resulting from the constitutional
traditions common to the member states. However, under former Article L (now
renumbered Article 46) the powers of the Court of Justice did not extend to Article F, so
limiting its impact. Since ensuring respect for the law in the interpretation and application
of the Treaty is the Court's task, the scope of fundamental rights was correspondingly
reduced.
By amending Article 46, the Treaty of Amsterdam ensures that Article 6(2) will be applied.
The Court now has the power to decide whether the institutions have failed to respect
fundamental rights.
BREACH BY A MEMBER STATE OF THE PRINCIPLES ON WHICH THE UNION IS
BASED
The Treaty of Amsterdam proclaims that the Union is founded on the principles of liberty,
democracy, respect for human rights and fundamental freedoms, and the rule of law,
principles which are common to the Member States. At the same time, the new Treaty
acknowledges that these principles may be infringed by a Member State and lays down
the procedure which the Union should follow in dealing with the Member State
concerned.
Establishment of the existence of a breach
On a proposal from the Commission or one third of the member states, the Council - in
the shape of the heads of state or government - may determine the existence of a breach
by a Member State. The breach must be "serious and persistent". The European
Parliament has to give its assent by a majority of its members and a two-thirds majority of
the votes cast. The government of the Member State in question is first invited to submit
its observations.
The Council's decision establishing a breach will be considered unanimous even where a
Member State abstains.
Suspension of the Member State concerned
Once a serious and persistent breach has been established, the Council may (but need
not necessarily) suspend some of the Member State's rights under the Treaty. However,
the country remains bound by its obligations. The suspension of rights might, for
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instance, involve withdrawing the Member State's voting rights in the Council.
At this second stage, the Council acts by a qualified majority, disregarding the votes of
the Member State concerned.
Variation or revocation of the suspension
If there is a change in the situation that led to a Member State's suspension, the Council
can decide to vary or revoke the measures taken.
When taking such a decision, the Council acts by a qualified majority, disregarding the
votes of the Member State concerned.
THE FIGHT AGAINST DISCRIMINATION
Article 12 (ex Article 6) of the EC Treaty provides that any discrimination on the grounds
of nationality is prohibited. At the same time, Article 141 (ex Article 119) lays down the
principle of non-discrimination between men and women, though only as far as equal pay
is concerned.
The Treaty of Amsterdam restates the principle of non-discrimination in stronger terms,
adding two new provisions to the EC Treaty.
The new Article 13
This Article complements Article 12, which prohibits discrimination on grounds of
nationality. The new Article enables the Council to take appropriate action to combat
discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or
sexual orientation.
When the Council acts on the basis of Article 13, it does so unanimously on a proposal
from the Commission and after consulting the European Parliament.
Declaration regarding persons with a disability
The new Article 13 provides for measures to combat discrimination based on disability.
The Intergovernmental Conference that drew up the Treaty of Amsterdam sought to offer
an even stronger guarantee by including a declaration in the Final Act, stating that the
Community institutions must take account of the needs of persons with a disability when
adopting measures to approximate Member States' legislation..
EQUALITY BETWEEN MEN AND WOMEN
Article 2 of the Treaty provides that it will be the Community's task to promote the
harmonious, balanced and sustainable development of economic activities,
environmentally-friendly growth, a high degree of convergence of economic performance,
a high level of employment and social protection, the raising of the standard of living and
quality of life, economic and social cohesion and solidarity among Member States. Article
3 lists the various measures which the Community should take to carry out the tasks
specified in Article 2.
The Treaty of Amsterdam extends these two Articles to include equality between men
and women, which previously figured only in Article 141 (ex Article 119) of the EC Treaty

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(more restricted in scope since it relates only to equal pay). The two additions made are
as follows:
Amendment of Article 2
The list of tasks facing the Commission will include the promotion of equality between
men and women.
Amendment of Article 3
A new paragraph has been added, reading as follows:
"In all the other activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women."
PROCESSING OF PERSONAL DATA
The main Community measure in this area is the 1995 Directive on the protection of
individuals with regard to the processing of personal data and on the free movement of
such data. In the absence of a specific legal basis, this Directive was adopted under
Article 95 (ex Article 100a) of the EC Treaty, which concerns the approximation of
legislation relating to the single market.
The free movement of persons necessarily entails the establishment of information
systems on a European scale. In view of these changes, a new article has been inserted
in the EC Treaty, making the rules on the protection of individuals applicable to the
Community institutions themselves.
The new Article 286
This Article will consist of two paragraphs which will provide respectively that:
from 1 January 1999, Community acts on the protection of individuals with regard to
the processing of personal data and the free movement of such data apply to the
Community institutions and bodies;
before 1 January 1999, the Council is to establish an independent supervisory body
responsible for monitoring the application of those Community acts to Community
institutions and bodies.

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C-127/07 Socit Arcelor Atlantique et Lorraine and Others v Premier ministre,


Ministre de lcologie et du Dveloppement durable, Ministre de lconomie,
des Finances et de lIndustrie, judgment of 16 December 2008
The Court confirms the validity of the directive on the scheme for greenhouse
gas emission allowance trading with regard to the principle of equal treatment
Directive 2003/87/EC establishes a scheme for greenhouse gas emission allowance
trading within the Community with the aim of contributing to compliance with the overall
commitment entered into under the Kyoto Protocol to reduce overall emissions of six
greenhouse gases by 8% as compared with the emission levels recorded in 1990.
Arcelor brought an action before the Conseil d'tat [Council of State] for the annulment
of the Decree of 15 April 2004 which transposes that directive in France. The applicant
relied, inter alia, on the infringement of the constitutional principle of equal treatment,
since the Directive provides for a difference in treatment between installations in the
steel sector, which are subject to the allowance trading scheme, and the aluminium and
plastic industries, which, even though they also emit greenhouse gases, are not subject
to that scheme. The Conseil d'tat asked the Court of Justice whether the Community
legislature breached the principle of equal treatment by applying unjustifiable different
treatment to comparable situations.
The Court pointed out first of all that the general principle of equal treatment requires
that comparable situations must not be treated differently and different situations must
not be treated in the same way unless such treatment is objectively justified. It held
that the steel, chemical and non-ferrous metal sectors are in fact in a comparable
situation as far as the objective of the directive in question is concerned, even though
they are treated differently.
The Court then considered whether the difference in treatment between these sectors
introduced by the directive at issue can be justified by objective reasons. In this regard,
the Court recalled that the Community legislature has a broad discretion where its action
involves political, economic and social choices and where it is called on to undertake
complex assessments and evaluations. However, it remains obliged to base its choice on
objective criteria appropriate to the aim pursued by the legislation in question.
In this case, the Court took the view, first, that the allowance trading scheme introduced
by Directive 2003/87/EC is a novel and complex scheme whose implementation and
functioning could have been disturbed by the involvement of too great a number of
participants and, second, that the original definition of the scope of the directive was
dictated by the objective of attaining a critical mass of emissions covered by the
scheme.
In this context, the exclusion of the chemical sector, which has a number of particularly
significant installations, from the scope of the Directive can be justified by reason of the
desire to avoid making the allowance trading scheme more difficult and increasing the
administrative burden, and thus to ensure that its functioning is not disturbed. Similarly,
the exclusion of the non-ferrous metal sector is permissible in view of the difference in
its level of emissions as compared with the other sectors covered.
The Court concluded that the Community legislature did not infringe the principle of
equal treatment by excluding the chemical and non-ferrous metal sectors from the
scope of Directive 2003/87/EC.

April 2009

http://ec.europa.eu/dgs/legal_service/arrets/07c127_en.pdf

E.C. Commission v. Greece


(Case C-185/96)
Before the Court of Justice of the European
Communities (Fifth Chamber)
ECJ (5th Chamber)
(Presiding, Puissochet P.C.; Jann ( Rapporteur),
Moitinho de Almeida, Gulmann
and Wathelet JJ.) Mr Siegbert Alber, Advocate General.
29 October 1998
H1 Application under Article 169 of the E.C. Treaty for a declaration that
Greece had failed to fulfil its Treaty obligations.
H2 Freedom of movement--legislation and administrative practices restricting the
provision of social advantages and social security on the ground of nationality-contrary to Community law.
H3 Under Greek law (Law 1910/1944, Decree 1153/1972 and Law 1892/1990)
families granted large-family status received certain financial advantages. The
Commission alleged that in practice only Greek nationals were granted such
status and that the provisions were therefore contrary to Community law. In
response to the reasoned opinion of the Commission to this effect, giving the
Greek Government two months to take the measures necessary to comply with
it, the Greek Government agreed to amend these provisions. The legislation as
subsequently drafted did not meet the Commission's objections and no date was
given for its adoption. The Commission therefore brought an action under Article
169 of the E.C. Treaty for a decision that Greece had failed to fulfil its Treaty
obligations.
Held:
Discrimination on grounds of nationality
H4 (a) All the advantages for which Law 1892/1990 provided constituted social
advantages within the meaning of Article 7(2) of Regulation 1612/68. They were
granted to national workers primarily because of their status as workers or by
virtue of residence, and their extension to nationals of other Member States was
likely to facilitate the free movement of workers. Both Decree 1153/1972 and Law
1892/1990 expressly made the award of benefits subject to Greek *745
nationality or origins and although Law 1910/1944 did not refer to nationality,

administrative practices had established it as one of the criteria for large-family


status and so the related advantages were granted solely to Greek nationals.
The question of the failure by a Member State to fulfil its obligations must be
determined according to the situation at the end of the period laid down in the
reasoned opinion, without taking account of later changes. The legislative
provisions and the administrative practice imposing nationality requirements
therefore infringed Article 48(2) of the E.C. Treaty, Article 7(2) of Regulation
1612/68, Article 7 of Regulation 1251/70, Article 52 of the E.C. Treaty and Article
7 of Directive 75/34. [18]-[24]
E.C. Commission v. Spain (C-361/95): [1997] E.C.R. I-7351; Martnez Sala v.
Freistaat Bayern (C-85/96): [1998] E.C.R. I-2691; Bernini v. Minister Van
Onderwijs en Wetenschappen (C-3/90): [1992] E.C.R. I-1071; and E.C.
Commission v. Luxembourg (C-111/91): [1993] E.C.R. I-817; [1994] 2 C.M.L.R.
781, followed.
H5 (b) The health care and cash benefits provided for by Law 1910/1944 and
Decree 1153/1972 were to be regarded as social security benefits because they
constituted sickness and family benefits repectively, within Article 4(1)(a) of
Regulation 1408/71, and were granted to recipients on the basis of legally
defined positions. The administrative practice and legislative provisions
subjecting the award of those benefits to nationality requirements were therefore
contrary to Regulation 1408/71, and the fact that the measures in Law 1892/1990
were adopted for reasons of demography policy did not save them. [25]-[28] &
[33]-[34]
E.C. Commission v. Luxembourg, supra; and Bestuur Van de Sociale
Verzekeringsbank v. Cabanis-Issarte (C-308/93): [1996] E.C.R. I-2097; [1996] 2
C.M.L.R. 729, followed.
Infringement of community law by "redundant" national provisions
H6 It was irrelevant that some of the advantages provided by the Greek
legislation were redundant, since the maintenance in force of legislation which
would infringe Community law, had it not become obsolete, was likely to
engender doubt incompatible with the principle of legal certainty. It was also
irrelevant that contrary to the express conditions of Greek nationality in Decree
1153/1972, certain benefits were paid to other Community nationals, since the
maintenance of that national law gave rise to an ambiguous state of affairs and
thus made uncertain the possibility of relying on Community law. Greece had
therefore failed to fulfil its obligations under Community law. [29]-[32] & [35]
E.C. Commission v. France (C-307/89): [1991] E.C.R. I-2903; [1993] 2 C.M.L.R.
765; and Reina v. Landeskreditbank Baden-Wrttemberg (65/81): [1982] E.C.R.
33; [1982] 1 C.M.L.R. 744, followed. *746
H7 Representation
Maria Patakia, of its Legal Service, acting as Agent, for the E.C. Commission.
Ioanna Galani-Maragkoudaki, Special Deputy Legal Adviser to the Special
Department for the Community Legal Matters of the Ministry of Foreign Affairs,
and Stamatina Vodina, Special Assistant in the same Department, acting as

Agents, for Greece.


H8 Cases referred to in the judgment:
1. E.C. Commission v. Spain (C-361/95), 18 December 1997: [1997] E.C.R. I7351.
2. Martnez Sala v. Freistaat Bayern (C-85/96), 12 May 1998: [1998] E.C.R. I2691.
3. Bernini v. Minister Van Onderwijs en Wetenschappen (C-3/90), 26 February
1992: [1992] E.C.R. I-1071.
4. E.C. Commission v. Luxembourg (C-111/91), 10 March 1993: [1993] E.C.R. I817; [1994] 2 C.M.L.R. 781.
5. Bestuur Van de Sociale Verzekeringsbank v. Cabanis-Issarte (C-308/93), 30
April 1996: [1996] E.C.R. I-2097; [1996] 2 C.M.L.R. 729.
6. E.C. Commission v. France (C-307/89), 11 June 1991: [1991] E.C.R. I-2903;
[1993] 2 C.M.L.R. 765.
7. Reina v. Landeskreditbank Baden-Wrttemberg (65/81), 14 January 1982:
[1982] E.C.R. 33; [1982] 1 C.M.L.R. 744.
H9 Further cases referred to by the Advocate General:
8. Criminal Proceedings against Even and Another (207/78), 31 May 1979:
[1979] E.C.R. 2019; [1980] 2 C.M.L.R. 71.
9. De Vos v. Stadt Bielefeld (C-315/94), 14 March 1996: [1996] E.C.R. I-1417.
10. E.C. Commission v. Italy (C-207/96), 4 December 1997: [1997] E.C.R. I6869.
11. E.C. Commission v. Germany (C-96/95), 20 March 1997: [1997] E.C.R. I1653.
12. E.C. Commission v. Germany (C-61/94), 10 September 1996: [1996] E.C.R.
I-3989; [1997] 1 C.M.L.R. 281.
13. E.C. Commission v. Greece (C-123/94), 1 June 1995: [1995] E.C.R. I-1457.
14. E.C. Commission v. France (C-197/96), 13 March 1997: [1997] E.C.R. I1489.
15. E.C. Commission v. France (C-334/94), 7 March 1996: [1996] E.C.R. I-1307.
16. Meints v. Minister Van Landbouw, Natuurbeheer en Visserij (C-57/96), 27
November 1997: [1997] E.C.R. I-6689; [1998] 1 C.M.L.R. 1159. *747
17. Mora Romero v. Landesversicherungsanstalt Rheinprovinz (C-131/96), 25
June 1997: [1997] E.C.R. I-3659; [1997] 3 C.M.L.R. 1141.
Opinion of Mr Advocate General Alber
Introduction
A1 The Commission has brought this action against Greece for failure to fulfil its
obligations under the Treaty on account of a series of breaches of the principle of
equal treatment enshrined in Community law, namely breaches arising from
provisions of law, implementing regulations and discriminatory administrative

practice. In substance, it concerns the recognition of non-Greek families as large


for the purpose of the Greek legislation and the social security benefits linked to
that status, which are normally reserved for Greek nationals.
A2 The Commission claims that the Court should:
-- declare that, by precluding, by regulation or administrative practice, on the
grounds of their nationality, Community workers, whether employees or selfemployed, and the members of their families, from being attributed large-family
status for the purpose of the award of the benefits provided for members of large
families and from being awarded family allowances, Greece is in breach of its
obligations under Community law, in particular Articles 48 and 52 of the E.C.
Treaty, Article 7 of Regulation 1612/68, [FN1] Article 7 of Regulation 1251/70,
[FN2] Article 7 of Directive 75/34, [FN3] and Article 3 of Regulation 1408/71.
[FN4]
-- order Greece to pay the costs.
FN1 Council Regulation 1612/68 on freedom of movement for workers within the
Community ([1968] O.J. Spec. Ed. (II) 475).
FN2 Commission Regulation 1251/70 on the right of workers to remain in the
territory of a Member State after having been employed in that State ([1970] O.J.
Spec. Ed. (II) 402).
FN3 Council Directive 75/34 concerning the right of nationals of a Member State
to remain in the territory of another Member State after having pursued therein
an activity in a self-employed capacity ([1975] O.J. L14/10).
FN4 Council Regulation on the application of social security schemes to
employed persons, to self-employed persons and to members of their families
moving within the Community (Consolidated version, [1997] O.J. L28/4).
A3 Greece contends that the Court should:
-- dismiss the action
-- order the Commission to pay the costs.
Facts
A4 The Commission became aware of the alleged inequalities of treatment as a
result of complaints. The Commission was still receiving complaints while the
written procedure was in progress before the Court. As long ago as 1992, before
it formally initiated proceedings for failure to fulfil obligations under the Treaty, the
Commission *748 conducted an exchange of letters with the Permanent
Representation of Greece. The Commission wrote to the Permanent
Representation on 2 March 1992 [FN5] and 11 June 1992, [FN6] and the latter
replied on 23 June 1992. [FN7] The Commission continued to regard the Greek
legal situation as contrary to Community law and initiated proceedings for failure
to fulfil obligations under the Treaty by letter of formal notice of 20 July 1993.
[FN8] The letter remained unanswered, with the result that, on 18 May 1995,

[FN9] the Commission delivered a reasoned opinion, laying down a period of two
months for compliance. By letter of 3 August 1995, [FN10] the Permanent
Representation announced that the law was to be amended. The Commission
expressed its views on that amendment on 13 October 1995. [FN11] By letter of
19 December 1995, [FN12] the Permanent Representation forwarded a proposal
for a law. The Commission responded to that by letter of 24 April 1996. [FN13]
The timing and extent of the proposed amendment of the law appeared
unsatisfactory to the Commission, with the result that, on 2 May 1996, it brought
an action which was received at the Court on 31 May 1996 and served on the
Greek Government on 11 July 1996.
FN5 Reference No. 3411, see Annex I to the application.
FN6 Reference No. 9495, see Annex I to the application.
FN7 Reference No. AM 3082/A/5458, see Annex II to the application.
FN8 Reference No. SG (93) D/12255, see Annex IV to the application.
FN9 Reference no. SG (95) D/6528 = E (95) 0578, see Annex V to the
application the letter bears the date of 18 May 1995 whereas the reasoned
opinion is dated 22 May 1995. In the application itself, 14 June 1995 is stated as
the date of dispatch of the reasoned opinion.
FN10 Reference No. 3082.5/A/4348, see Annex A to the defence.
FN11 Reference No. 1423, see Annex B to the defence.
FN12 Reference No. 3082.5/A.6433, see Annex VI to the application.
FN13 Reference No. 0685, see Annex VII to the application, corresponds to
Annex A to the defence.
A5 In the course of the procedure before the Court, the Greek Government made
it known, by letter of 3 April 1997, that the amendment which it had announced
had now taken place by means of Article 39 of Law 2459/97. [FN14] While taking
note of the amendment, the Commission nevertheless continued with its action.
FN14 Published in Part A of Official Gazette No. 17 of 18 February 1997.
A6 The individual legislative provisions at issue are as follows:
Law 1910/1944
Article 1 lays down the substantive conditions governing entitlement to largefamily status, while Article 2 sets out extensive and detailed procedural

requirements for the recognition of that status. Articles 3 to 12 provide for a


series of social advantages of varying current relevance.
Decree 1153/1972
This Decree provides both for family benefits payable monthly and for family
benefits payable annually. Depending on the number of *749 children, the
benefits range in amount from 500 dr to 1,000 dr per month or from 2,000 dr to
2,500 dr per year. [FN15] Access to the benefits is dependent on the possession
of Greek nationality or Greek origin.
FN15 See Articles 3, 4 and 7 of the Decree.
Law 1892/1990
Article 63(1) and (2) of this Law of 31 July 1990 provide for a monthly benefit of
34,000 dr, payable for three years or until the child attains the age of three, for
mothers who have given birth to a third child. Under paragraph 3 of the provision,
a mother recognised as a parent of a large family within the meaning of Law
1910/1944 is granted a monthly allowance until her youngest unmarried child
attains the age of 25.
Finally, paragraph 4 provides for a pension for life for the mother.
Ministerial Order CIa/440 of 7/21 February 1991
This is an implementing order adopted pursuant to Law 1892/1990. Articles 2, 13
and 14 lay down certain conditions governing access to the benefits provided for
in Article 63 of Law 1892/1990. In summary, all the benefits to be granted
pursuant to this act are linked to the beneficiaries' possession of Greek
nationality or Greek origin. For example, loss of Greek nationality results directly
in the loss of entitlement to benefit. [FN16]
FN16 See, for example, Article 13(2)(d) and Article 14(1)(c) of the Ministerial
Order.
A7 The Commission is of the view that all the benefits based on the
abovementioned provisions are linked to Greek nationality, [FN17] which
constitutes discrimination on grounds of nationality contrary to Community law. It
claims that such unequal treatment is based either directly on the legislative
provisions or, in any event, on discriminatory administrative practice such as, for
example, in the application of Law 1910/1944. According to the Commission, the
unequal treatment is in breach of the prohibition of discrimination under
Community law in several of the forms which that prohibition takes in the Treaty
and in secondary Community legislation.
FN17 This refers to Greek nationality or origin. When the term "nationality" is
mentioned below, it should be construed in the broad sense.

A8 The Commission bases its claim on Articles 7, [FN18] 48 and 52 of the


Treaty and on Article 7 of Regulation 1612/68. [FN19] Article 7 of Regulation
1251/70, [FN20] Article 7 of Directive 75/34 [FN21] and Article 3 of Regulation
1408/71. [FN22]
FN18 Although in its application the Commission bases its view on Article 7 of
the Treaty, the general principle of the prohibition of discrimination now appears
in Article 6 by virtue of the Maastricht Treaty.
FN19 Cited in fn. 1.
FN20 Cited in fn. 2.
FN21 Cited in fn. 3.
FN22 Cited in fn. 4.
A9 It maintains that the benefits have in common the fact that they are *750 all
allowances of a social nature, some of which are means-tested and others are
not. Viewed from a purely abstract standpoint, some of the benefits may fall
within the scope of both Regulation 1408/71 and Regulation 1612/68. It is the
circumstances of each individual case which are the decisive factor. The
Commission points out that the Court has held that a benefit may, purely
hypothetically, fall within the scope of both Regulations. [FN23]
FN23 Judgment in Case C-111/91, E.C. Commission v. Luxembourg: [1993]
E.C.R. I-817; [1994] 2 C.M.L.R. 781, at para. [21].
A10 According to the Commission, some of the benefits must be classified as
family benefits or family allowances within the meaning of Regulation 1408/71.
[FN24] In assessing whether a benefit is covered by Regulation 1612/68,
Regulation 1408/71, Regulation 1251/70 or Directive 75/34, the decisive factor is
the claimant's personal situation. Thus it is relevant whether he is employed or
self-employed, whether he is in work or making use of his right to remain, and
whether he is asserting his own or derivative rights. At the Court's request, the
Commission produced a list of the legislative provisions in question and their
potential scope.
FN24 Article 1(u).
A11 In so far as the Greek Government pleads that some of the benefits are
granted for demographic reasons, the Commission points out that, according to
the Court's case law, [FN25] demographic considerations cannot justify
discrimination. Finally, the Commission notes that the submission of a draft law
amending the legislative provisions objected to must, at least in part, be regarded

as an admission of the need to amend the provisions in question. The


employment legislation referred to by the Greek Government is not part of the
subject-matter of the proceedings.
FN25 Judgment in Case 65/81, Reina v. Landeskreditbank Baden-Wrttemberg:
[1982] E.C.R. 33; [1982] 1 C.M.L.R. 744, at para. [15].
A12 The Greek Government is of the opinion that the action is unfounded. In
addition, it contends that for some of the objections there are no grounds. An
inaccurate account has thus been given of the original cases.
A13 According to the Greek Government, the legal situation of large families is
governed by various provisions. The rights granted to such families are contained
in several legal instruments. Even the definition of "large family" is not uniform.
The multiplicity of legislative provisions to be taken into consideration explains
why, up to now, full account has not been taken of Community citizens. Their
recognition as persons entitled to benefits is under way.
A14 According to the Greek Government, the benefits paid to members of large
families have in common an historical and sociological basis. Protection of the
family has constitutional rank. In view of the increasing percentage of old people
in the Greek population, a number of the benefits are based on demographic
reasons. Some of the *751 provisions referred to by the Commission are
outdated. Articles 3, 4, 5, 6, 9 and 12 of Law 1910/1944 are now, for various
reasons, nugatory or irrelevant to these proceedings. [FN26]
FN26 See Article 5 of the Law, which provides for an exemption from military
service.
A15 It contends that large-family status within the meaning of Law 1910/1944 is
not the decisive criterion for the award of the benefits provided for by Decree
1153/1972. [FN27] Moreover, Community citizens could also receive those
benefits since Annex I to the Act of Accession contains a list, referred to in Article
21 of the Act, under title "IX. Social Policy" of which a letter "E. Greece",
containing a definition of workers entitled for the purposes of granting family
allowances, [FN28] has been inserted in Annex V to Regulation 1408/71.
FN27 See para. 6(2) above.
FN28 See [1979] O.J. L291/99.
A16 According to the Greek Government, the benefits under Article 63 of Law
1892/1990 [FN29] are granted in pursuit of demographic objectives. They are in
the nature of an award in recognition of the special contribution which a mother
of a large family makes to society. In particular, the pension for life is granted "as
an honour". That pension in particular cannot be classified as falling under
Regulation 1408/71 or under Regulation 1612/68. In so far as demographic
reasons alone are not sufficient to justify the grant of benefits to persons of

Greek origin, moral recognition of a contribution to society is a further factor


which must be taken into account. In that respect, the Greek Government refers
to the Court's judgments in Case 207/78, Criminal Proceedings against Even and
Another and Case C-315/94, De Vos v. Stadt Bielefeld. [FN30] Moreover, it
points out that the legislation is being amended with regard to the other benefits
referred to in Article 63 of Law 1892/1990. Greek employment legislation is in
any case undergoing a review for the purpose of adapting it to the requirements
of Community law.
FN29 See para. 6(3) above.
FN30 Even: [1979] E.C.R. 2019; [1980] 2 C.M.L.R. 71; and De Vos: [1996]
E.C.R. I-1417.
A17 The amendment of the Law [FN31] by Article 39 of Law 2459/97, announced
by the Greek Government by letter of 3 April 1997, has essentially the following
content: Articles 1 and 2 of Law 1910/1944 (definition and procedure for the
recognition of a family as large) are expressly extended to apply to Community
citizens. [FN32] The benefits described in Article 63(1) to (3) of Law 1892/1990
(family benefits payable monthly to the mother) are expressly made accessible to
Community nationals, under the same conditions as apply to Greeks. [FN33]
FN31 Official Gazette No. 17 of 18 February 1997, part A.
FN32 See Article 39(5) of Law 2459/97.
FN33 See Article 39(6) of Law 2459/97.
*752 Opinion
Admissibility
A18 In view of the change in the law which has taken place in the course of the
written procedure, the question arises, at least in part, as to whether there is a
legal interest in bringing these proceedings.
A19 By virtue of the fact that the Greek Government has enacted legal provisions
which--on the assumption at least--have at least partially remedied the situation
giving rise to the action, this case may not, in part, need to proceed to judgment.
However, it is not usual, in Treaty infringement proceedings, for the Court to
declare that there is no need for the case to proceed to judgment. That is due to
the particular characteristics of such proceedings. On the one hand, it is common
practice for the Commission, as the applicant in Treaty infringement proceedings,
to bring the proceedings to an end by discontinuance of its action if the situation
not in conformity with the Treaty has been remedied. The structure of Treaty
infringement proceedings, with their obligatory pre-litigation procedure, is
designed to allow an amicable settlement at any stage of the proceedings.
[FN34] On the other hand, the Court has consistently held that a legal interest in

bringing proceedings must be affirmed where the conduct objected to persists


after expiry of the period laid down in the reasoned opinion. [FN35]
FN34 It is settled case law that the purpose of the pre-litigation procedure is also
to give the Member State concerned an opportunity to comply with its obligations
under Community law. See the judgments in Case C-207/96, E.C. Commission v.
Italy: [1997] E.C.R. I-6869, at para. [17], and Case C-96/95, E.C. Commission v.
Germany: [1997] E.C.R. I-1653, at para. [22].
FN35 See the judgments in Case C-361/95, E.C. Commission v. Spain: [1997]
E.C.R. I-7351, at paras [13] & [14]; Case C-61/94, E.C. Commission v. Germany:
[1996] E.C.R. I-3989; [1997] 1 C.M.L.R. 281, at para. [42]; and Case C-123/94,
E.C. Commission v. Greece: [1995] E.C.R. I-1457, at para. [7].
A20 It is undisputed that the legislative provisions objected to by the Commission
were fully in force at the time of expiry of the period laid down in the reasoned
opinion. In principle, therefore, it can be assumed without further examination
that there is a legal interest in bringing the proceedings.
Substance
A21 The prohibition of discrimination under Community law, which is enshrined
in the Treaty, is one of the cornerstones of the Community legal order. It is
inherent in the fundamental freedoms. Articles 6, 48(2) and 52 of the Treaty are
therefore the correct starting point as regards freedom of movement for persons.
The prohibition of inequality of treatment on grounds of nationality is given
concrete expression in acts of secondary Community legislation and thus takes
effect in the particular legislative context.
A22 For example, Article 7(1) and (2) of Regulation 1612/68 on freedom of
movement for workers within the Community provides as follows: *753
(1) A worker who is a national of a Member State may not, in the territory of
another Member State, be treated differently from national workers by reason of
his nationality in respect of any conditions of employment and work, in particular
as regards remuneration, dismissal, and should he become unemployed,
reinstatement or re-employment
(2) He shall enjoy the same social and tax advantages as national workers.
Again for example, Article 3(1) of Regulation 1408/71, on the application of social
security schemes to employed persons, to self-employed persons and to
members of their families moving within the Community, provides as follows:
Subject to the special provisions of this Regulation, persons resident in the
territory of one of the Member States to whom this Regulation applies shall be
subject to the same obligations and enjoy the same benefits under the legislation
of any Member State as the nationals of that State.
In accordance with Article 7 of Regulation 1251/70, on the right of workers to
remain in the territory of a Member State after having been employed in that
State, "[t]he right to equality of treatment, established by Council Regulation
1612/68, shall apply also to persons coming under the provisions of this

Regulation".
Finally, Article 7 of Directive 75/34, concerning the right of nationals of a Member
State to remain in the territory of another Member State after having pursued
therein an activity in a self-employed capacity, provides as follows:
Member States shall apply to persons having the right to remain in their territory
the right of equality of treatment recognised by the Council Directives on the
abolition of restrictions on freedom of establishment pursuant to Title III of the
General Programme which provides for such abolition.
A23 In summary, it can be concluded that the principle under Community law of
equal treatment for employed persons and self-employed persons is applicable
during their working life and beyond in so far as they exercise their right to
remain. According to the scope ratione personae of the relevant provisions, the
principle of equal treatment also applies to the members of the families of the
persons concerned.
A24 All the benefits provided for by the Greek legislation in question, which are
the subject-matter of these proceedings, are benefits of a social character which
either fall within the scope of Regulation 1408/71 or are covered by Article 7 of
Regulation 1612/68. The scope ratione materiae of Regulation 1408/71 is
defined in Article 4 as follows:
1. This Regulation shall apply to all legislation concerning the following branches
of social security:
...
(h) family benefits
.... *754
A25 The Court has consistently held that a benefit may be regarded as a social
security benefit "in so far as it is granted, without any individual and discretionary
assessment of personal needs, to recipients on the basis of a legally defined
position, and provided that it concerns one of the risks expressly listed in Article
4(1) of Regulation 1408/71". [FN36]
FN36 See the judgment in E.C. Commission v. Luxembourg, cited above, at
para. [29], with further references.
A26 Article 1(u) contains a definition of family benefits and allowances. It states:
(i) "family benefits" means all benefits in kind or in cash intended to meet family
expenses under the legislation provided for in Article 4(1)(h), excluding the
special childbirth allowances mentioned in Annex II; (ii) "family allowances"
means periodical cash benefits granted exclusively by reference to the number
and, where appropriate, the age of members of the family.
Annex II to the regulation does not list any childbirth or adoption allowances for
Greece. It expressly states: "None".
A27 As the Commission rightly states, it is in fact necessary to examine the
specific situation of the person entitled in order to determine conclusively which
of the abovementioned Community legislative provisions should be applied.
However, such an examination is not possible at the abstract level of Treaty
infringement proceedings. Nevetheless, that does not, in principle, preclude a

finding of a breach, contrary to Community law, of the principle of equal


treatment since all the abovementioned legislative provisions are an expression
of the prohibition, in Community law, of discrimination on grounds of nationality.
a. Law 1910/1944
A28 There is no dispute that Articles 1 and 2 of Law 1910/1944 lay down the
conditions and procedures for obtaining "large-family" status in the strict legal
sense. Although those provisions do not make any explicit reference to Greek
nationality, it must be assumed that it was consistent administrative practice for
such recognition to be reserved for nationals of Greek origin. That is shown, first,
by the complaints which prompted the Commission to act. Secondly, the Greek
Government's defence also gives grounds for supposing that the recognition of a
family as large within the meaning of the legislation in question was denied to
Community nationals since the Greek Government relied initially only on the
obsoleteness of the Law, although Law 2459/07 did subsequently extend the
application of Articles 1 and 2 of Law 1910/1944 to Community nationals.
A29 Even if, as the Greek Government argues, Articles 3, 4, 5, 6, 9 and 12 of
Law 1910/1944 are obsolete, Articles 7, 8, 10 and 11 are still of relevance, as the
Commission also expressly pointed out during the *755 oral procedure. They
deal with social advantages, for the grant of which recognition as a large family,
within the meaning of Articles 1 and 2, is an indispensable condition. Article 7 of
the Law, for example, provides for costs incurred in legal proceedings to be
reduced by half. Article 8 deals with certain tax reliefs and tax exemptions. As
well as certain public service advantages, Article 10 concerns fare reductions for
public transport. Article 11 deals with welfare payments intended to assist, for
example, with the care of under-age or sick children or contribute towards the
financing of daughters' dowries.
b. Decree 1153/1972
A30 This Decree contains direct discrimination on grounds of nationality since it
expressly requires beneficiaries to be of Greek nationality. It is true that the
Greek Government takes the view that the Act of Accession gave Community
nationals access to the benefits. However, the part of the Act of Accession it
refers to contains only a definition of the workers entitled to claim family
allowances for the purpose of applying Regulation 1408/71. The rules for the
grant of such benefits are not cited. Even if those rules operate implicitly within
the scope of Regulation 1408/71, that does not in any way alter the working of
Decree 1153/1972, which must be regarded as unclear. The Court has
consistently held that the alteration of an administrative practice is not sufficient
to remedy a legal situation which is incompatible with the Treaty. [FN37] The
provisions concerned must be unambiguously adapted to the requirements of
Community law.
FN37 See judgments in Case C-197/96, E.C. Commission v. France: [1997]

E.C.R. I-1489, at para. [14]; and Case C-334/94, E.C. Commission v. France:
[1996] E.C.R. I-1307, at para. [30].
c. Law 1892/1990
A31 The benefits provided for under Article 63(1) to (3) of this Law are family
benefits within the meaning of Regulation 1408/71, the receipt of which is
expressly reserved for Greeks by Ministerial Order CIa/440 of 7/21 February
1991. However, the Court has held [FN38] that demographic reasons, on which
the Greek Government bases the grant of the benefits, cannot jutify
discrimination on grounds of nationality. Nor do the provisions in question
represent a misleading interpretation of national law in the light of Community
law, but are discriminatory rules enacted expressly after the accession to the
European Community.
FN38 See the judgment in Reina, cited above.
A32 However, the same is also true of the pension granted under Article 63(4) of
the Law. As "periodical cash benefits granted exclusively by reference to the
number and, where appropriate, the age of members of the family", it must be
regarded as a family allowance for the purpose of Regulation 1408/71. A
worker's spouse also is entitled, *756 within the scope of Regulation 1408/71, to
rely on the principle of equal treatment under Article 3 of the Regulation. [FN39]
FN39 Case C-308/93, Bestuur Van de Sociale Verzekeringsbank v. CabanisIssarte: [1996] E.C.R. I-2097; [1996] 2 C.M.L.R. 729, at para. [44].
A33 Even if one should have doubts with regard to the classification of the
benefit according to the categories in Regulation 1408/71, it must in any case be
assumed that it constitutes a social advantage within the meaning of Article 7(2)
of Regulation 1612/68. The Court has consistently defined such advantages as
all advantages:
which, whether or not linked to a contract of employment, are generally granted
to national workers because of their objective status as workers or by virtue of
the mere fact of their residence on the national territory, and whose extension to
workers who are nationals of other Member States therefore seems likely to
facilitate the mobility of such workers within the Community. [FN40]
FN40 Judgment in Case C-57/96, Meints v. Minister Van Landbouw,
Natuurbeheer en Visserij: [1997] E.C.R. I-6689; [1998] 1 C.M.L.R. 1159, at para.
[39].
Even if the mother of the large family did not have the status of worker herself, it
would be sufficient if the father were to be regarded as a worker within the
meaning of the provision since, under Article 10 of Regulation 1612/68, the
worker's spouse is also a beneficiary of the Regulation. The provision of equal
treatment in the field of social advantages, provided for in Article 7(2) of

Regulation 1612/68, has been consistently upheld by the Court in favour of the
members of workers' families. [FN41] It follows that the pension provided for by
Article 63(4) of the Law must be granted to Community nationals who are
mothers of several children under the same conditions as it is granted to Greek
women.
FN41 Judgment in Cabanis-Issarte, cited above at para. [38].
A34 It must be said, in response to the Greek Government's argument that the
pension is granted "as an honour" in recognition of the merits of mothers of large
families and must therefore be reserved for Greek women, that the contribution
to society of mothers who are Community nationals is comparable to that of
Greek women. It may be assumed that the parents and children of a large family
who are established in Greece pay taxes and social security contributions to the
Greek scheme. Social usefulness therefore extends far beyond a moral
contribution. The judgments in the Even and De Vos cases, which concerned,
respectively, an advantage in the drawing of the old age pension to compensate
for hardships suffered for the country in wartime [FN42] and partial compensation
under social security legislation for the consequences of the obligation to perform
military service, [FN43] are not applicable to the circumstances of this case. The
latter are not comparable to the situation of a beneficiary who has made personal
sacrifices for the country of which he is a national. In so far as the advantage
under Article 63(4) of Law 1892/1990 must be regarded as *757 falling within the
scope ratione materiae of Regulations 1408/71 and 1612/68, that view is also
confirmed by Case C-131/96, Mora Romero v. Landesversicherungsanstalt
Rheinprovinz [FN44] in which periods of training interrupted by compulsory
military service, including in another Member State, were held to be reckonable
periods for the purposes of granting orphan's benefit.
FN42 See the Even case, cited above, at para. [23].
FN43 See the De Vos case, cited above, at para. [21].
FN44 [1997] E.C.R. I-3659; [1997] 3 C.M.L.R. 1141.
A35 Finally, it is necessary to examine Article 39 of Law 2459/97. The
Commission is right in maintaining that this Law has only partially remedied the
situation incompatible with the Treaty. The ambiguity in Decree 1153/1972
continues to exist. The benefits under Article 63 of Law 1892/1990 have been
rendered only partly accessible to Community nationals. To compound matters,
Law 1892/1990 in conjunction with Ministerial Order CIa/440 of 7/21 February
1991, was not enacted until well after the accession of Greece to the European
Community. With regard to the benefits under Article 63(4) of Law 1892/1990,
the Greek Government persists in its view that discrimination can be justified on
demographic grounds. Consequently, even taking into consideration Law
2459/97, [FN45] Greece should be found to have failed to fulfil its obligations

under the Treaty. However, that Law is not a decisive factor since the legal
situation at the time of the expiry of the period laid down in the reasoned opinion
clearly constitutes a Treaty infringement. The form of order sought by the
Commission should therefore be granted in full.
FN45 On the content of the law, see para. [17] above.
Costs
In accordance with the first paragraph of Article 69(2) of the Rules of Procedure,
the unsuccessful party is to be ordered to pay the costs if they have been applied
for in the unsuccessful party's pleadings. Since, according to the solution
proposed above, the defendant would be the unsuccessful party, it should be
ordered to pay the costs.
Conclusion
A36 In the light of the foregoing I propose that the Court:
(1) declare that, by precluding, by regulation or administrative practice, on
grounds of their nationality, Community workers, whether employees or selfemployed, and the members of their families, from being attributed large-family
status for the purpose of the award of the benefits provided for members of large
families and from being awarded family supplements, Greece has failed to fulfil
its obligations under Community law, in particular Articles 48 and 52 of the E.C.
Treaty, Article 7 of Regulation 1251/70, Article 7 of Directive 75/34 and Article 3
of Regulation 1408/71.
(2) order Greece to pay the costs.
*758 JUDGMENT
1 By application lodged at the Court Registry on 31 May 1996, the Commission
of the European Communities brought an action under Article 169 of the E.C.
Treaty for a declaration that, by precluding by regulation or administrative
practice on the grounds of their nationality employed or self-employed workers
from other Member States and the members of their families from being
attributed large-family status for the purpose of the award of special benefits or
such families and from being awarded family allowances, Greece has failed to
fulfil its obligations under Articles 48 and 52 of the E.C. Treaty, Article 7 of
Council Regulation 1612/68 on freedom of movement for workers within the
Community, [FN46] Article 7 of Commission Regulation 1251/70 on the right of
workers to remain in the territory of a Member State after having been employed
in that State, [FN47] Article 7 of Council Directive 75/34 concerning the right of
nationals of a Member State to remain in the territory of another Member State
after having pursued therein an activity in a self-employed capacity [FN48] and
Article 3 of Council Regulation 1408/71 on the application of social security
schemes to employed persons, to self-employed persons and to members of
their families moving within the Community. [FN49]

FN46 [1968] O.J. Spec. Ed. (II) 475.


FN47 [1970] O.J. Spec. Ed. (II) 402.
FN48 [1975] O.J. L14/10.
FN49 [1992] O.J. C325/1 (Consolidated version).
The legal background
The Community legislation
2 Article 7(1) and (2) of Regulation 1612/68 provides:
1. A worker who is a national of a Member State may not, in the territory of
another Member State, be treated differently from national workers by reason of
his nationality in respect of any conditions of employment and work, in particular
as regards remuneration, dismissal, and should he become unemployed,
reinstatement or re-employment;
2. He shall enjoy the same social and tax advantages as national workers.
3 Article 7 of Regulation 1251/70 provides:
The right to equality of treatment, established by Council Regulation 1612/68,
shall apply also to persons coming under the provisions of this Regulation.
4 Article 7 of Directive 75/34 provides:
Member States shall apply to persons having the right to remain in their territory
the right of equality of treatment recognised by the Council directives on the
abolition of restrictions on freedom of establishment *759 pursuant to Title III of
the general programme which provides for such abolition.
5 Article 3(1) of Regulation 1408/71 provides:
1. Subject to the special provisions of this Regulation, persons resident in the
territory of one of the Member States to whom this Regulation applies shall be
subject to the same obligations and enjoy the same benefits under the legislation
of any Member State as the nationals of that State.
The Greek legislation
6 Articles 1 and 2 of Law 1910/1944, consolidating the legislation on the
protection of large families, lay down the requirements which families must meet
in order to be accorded large-family status. Articles 3 to 12 of that Law set out the
various advantages to which such status affords entitlement. These may consist
in the reduction or waiving of charges, or the grant of assistance, or preferential
treatment in such areas as education, health, housing, legal matters, access to
employment in the public service, and transport.
7 Decree 1153/1972 on the protection of large families provides for the grant of

cash benefits to large families whose habitual residence is in Greece. The grant
of those benefits is subject to certain conditions concerning in particular the
Greek nationality or Greek origins of family members.
8 Pursuant to Article 63(1) and (2) of Law 1892/1990 of 31 July 1990 concerning
measures to combat population problems, a mother receives a monthly cash
benefit, payable for three years, on the birth of her third child. Article 63(3)
provides that, in the case of large families, a monthly cash benefit for each child
under 25 years of age is to be granted to the mother who, pursuant to Law
1910/1944, is deemed to be head of the household in such cases. Under Article
63(4), a mother who is no longer entitled to the last-mentioned benefit receives a
pension for life. Pursuant to the implementing decree of 7 and 21 February 1991,
the grant of those benefits is subject to certain conditions concerning the Greek
nationality or Greek origins of family members.
The pre-litigation procedure
9 On learning through complaints submitted by Community nationals working in
Greece that only Greek nationals were granted large-family status and the
related advantages, the Commission wrote to the Greek authorities on 2 March
and 11 June 1992 asking for an explanation. By letter of 23 June 1992, the
Greek authorities replied essentially that the legislation at issue was composed of
various sets of provisions essentially of a social character, all of which were
intended to assist large families resident in Greece, whether or not the persons
concerned were workers. As regards, more specifically, Law 1892/1990, the
Greek authorities emphasised that, given its demographic *760 policy aims, the
benefits for which it made provision fell outside the scope of the principle of nondiscrimination laid down by the Treaty.
10 The Commission took the view that the provisions at issue and the related
administrative practice entailed discrimination contrary to Community law and
decided to initiate the infringement procedure laid down by Article 169 of the
Treaty. It therefore sent Greece a letter of formal notice on 20 July 1993 asking it
to submit its observations within two months.
11 Since Greece did not reply to that letter, the Commission delivered a
reasoned opinion by letter of 18 May 1995, calling upon it to take the necessary
measures to comply with the opinion within two months of its notification.
12 In response to the reasoned opinion, the Greek Government, after stating in a
letter of 3 August 1995 that the provisions at issue were to be amended, sent the
Commission a copy of the relevant draft legislation under cover of a letter of 19
December 1995.
13 By letter of 24 April 1996 addressed to the Greek Government, the
Commission pointed out that the draft legislation was only in the first stage of the
adoption process, that no indication had been given as to the possible date of its
adoption and that, moreover, the draft legislation did not appear to meet all the
objections set out in the reasoned opinion. The Commission therefore brought
the present proceedings.
14 After the present proceedings had been brought, Greece informed the Court

of the adoption of Law 2459/1997, published in the Official Journal of Greece of


18 February 1997, Article 39 of which lays down that Community nationals are
also to be eligible for the benefits provided for by Law 1910/1944 and by Article
63(1) to (3) of Law 1892/1990.
Substance
15 In the Commission's submission, all the advantages provided for by the Greek
legislation at issue, with the exception of exemption from military service under
Article 5 of Law 1910/1944 which concerns only Greek nationals, constitute
social advantages within the meaning of Article 7(2) of Regulation 1612/68. The
health-care benefits provided for by Law 1910/1944 and the cash benefits
provided for by Decree 1153/1972 and by Article 63(1) to (3) of Law 1892/1990
also constitute social security benefits within the meaning of Article 4(1) of
Regulation 1408/71.
16 The Commission concludes that the legislation at issue, in so far as it gives
rise to discrimination directly based on grounds of nationality, or in so far as the
manner of its implementation leads to the same result, is contrary to the principle
of the free movement of persons laid down in Articles 48 and 52 of the Treaty
and, more specifically, to the principle of equal treatment for workers,
implemented by Article 7(2) of Regulation 1612/68 and by Article 3(1) of
Regulation 1408/71.
17 *761 Greece contends that, even though it was made clear in the course of
the pre-litigation procedure that it intended to amend the legislation at issue--an
intention which, after the proceedings had been initiated, was carried out through
the adoption of Law 2459/1997--the Commission failed to take this into account.
18 On that point, it must be borne in mind that the Court has consistently held
that the question whether a Member State has failed to fulfil its obligations must
be determined by reference to the situation in the Member State as it stood at the
end of the period laid down in the reasoned opinion, and that the Court cannot
take account of any subsequent changes. [FN50]
FN50 See, inter alia, Case C-361/95, E.C. Commission v. Spain: [1997] E.C.R. I7351.
19 Since the present action calls for consideration of the application of the
principle of equal treatment in relation to both social advantages and social
security benefits, [FN51] the meaning of those concepts must be re-examined.
FN51 As to the joint application Regulations 1612/68 and 1408/71, see Case C85/96, Martnez Sala v. Freistaat Bayern: [1998] E.C.R. I-2691, para. [27].
20 First, as regards social advantages, it is settled law that this concept
embraces all the advantages which, whether or not linked to a contract of
employment, are generally granted to national workers primarily because of their
objective status as workers or by virtue of the mere fact of their residence on the

national territory and whose extension to workers who are nationals of other
Member States therefore seems likely to facilitate the mobility of such workers
within the Community. [FN52]
FN52 Martnez Sala, para. [25].
21 As the Commission has argued, it follows from that definition that all the
advantages for which the Greek legislation at issue provides in relation to large
families constitute social advantages within the meaning of Article 7(2) of
Regulation 1612/68. Pursuant to that provision, therefore, workers who are
nationals of other Member States must be eligible for those advantages on the
same terms as national workers. Equal treatment in that sense must also extend
to dependent members of their families. [FN53]
FN53 Case C-3/90, Bernini v. Minister Van Onderwijs en Wetenschappen: [1992]
E.C.R. I-1071, para. [28].
22 The Commission has submitted that, although Law 1910/1944 is silent as to
nationality, administrative practice has nevertheless established Greek nationality
as one of the criteria for attribution or large-family status and, in consequence,
the related advantages are granted solely to Greek nationals. Greece has not
challenged that assertion, which is moreover substantiated by the fact that Article
39 of Law 2459/1997 extended the scope of Law 1910/1944 to cover Community
nationals.
23 Furthermore, both Decree 1153/1972 and the combined provisions of Law
1892/1990 and the implementing decree of 7 and 21 February 1991 expressly
make the award of the benefits for which they provide *762 subject to conditions
concerning the Greek nationality or Greek origins of family members.
24 In imposing a discriminatory nationality requirement, that administrative
practice, like those legislative provisions, infringes Article 48(2) of the Treaty,
Article 7(2) of Regulation 1612/68 and Article 7 of Regulation 1251/70. For the
same reason, they also constitute an infringement of Article 52 of the Treaty and
Article 7 of Directive 75/34. [FN54]
FN54 Case C-111/91, E.C. Commission v. Luxembourg: [1993] E.C.R. I-817;
[1994] 2 C.M.L.R. 781, para. [17].
25 Secondly, as regards social security benefits, the Court has ruled on
numerous occasions that a benefit may be regarded as a social security benefit
in so far as it is granted, without any individual and discretionary assessment of
personal needs, to recipients on the basis of a legally defined position, and
provided that it concerns one of the risks expressly listed in Article 4(1) of
Regulation 1408/71. [FN55]
FN55 E.C. Commission v. Luxembourg, cited above, para. [29] and the case law
cited.

26 It is apparent from that definition that, among the benefits provided for by Law
1910/1944, those relating to health-care also constitute social security benefits,
since they fall within the category of sickness benefits referred to in Article 4(1)(a)
of Regulation 1408/71.
27 The same is true of the cash benefits provided for by Decree 1153/1972 and
by Article 63(1) to (4) of Law 1892/1990, which must be regarded as family
benefits within the meaning of Article 4(1)(h) of Regulation 1408/71.
28 Accordingly, the administrative practice and legislative provisions making the
award of those benefits subject to discriminatory nationality requirements are
also contrary to the rule laid down in Article 3(1) of Regulation 1408/71
concerning equal treatment of workers which, it should be recalled, may also be
relied upon by members of their families. [FN56]
FN56 Case C-308/93, Bestuur Van de Sociale Verzekeringsbank v. CabanisIssarte: [1996] E.C.R. I-2097; [1996] 2 C.M.L.R. 729.
29 In that connection, Greece contends that most of the advantages provided for
by Law 1910/1944 are now redundant.
30 It must be observed that the maintenance in force, even if only in a formal
way, of legislation which, if it had not become obsolete, would infringe
Community law, is likely to engender doubt incompatible with the principle of
legal certainty, in so far as such a situation exacerbates the difficulties for
potential beneficiaries in ascertaining the extent of their rights.
31 The Greek Government also contends that, notwithstanding the express
provisions of Decree 1153/1972, the benefits provided for therein are not
reserved for Greek nationals but, in accordance with the directly applicable
provisions of Regulation 1408/71, are also paid to Community nationals.
32 On that point, suffice it to recall that, according to established case *763 law,
the maintenance of national legislation which is in itself incompatible with
Community law, even if the Member State concerned acts in accordance with
Community law, gives rise to an ambiguous state of affairs by maintaining, as
regards those subject to the law who are concerned, a state of uncertainty as to
the possibilities for them of relying on Community law. [FN57]
FN57 Case C-307/89, E.C. Commission v. France: [1991] E.C.R. I-2903; [1993]
2 C.M.L.R. 765, para. [13], and the case law cited.
33 The Greek Government contends, lastly, that the Greek nationality
requirement to which the grant of the benefits provided for by Article 63(1) to (4)
of Law 1892/1990 is subject, is justified because those benefits help to further
demographic policy aims. So far as concerns the life pension for mothers of large
families provided for by Article 63(4), the Greek Government maintains, in
particular, that the nationality requirement is justified by the fact that the pension
in question is awarded as an honour in recognition of a contribution made to
society which, in view of the declining birthrate in Greece, may be regarded as a

service to the country.


34 On that point, it should be recalled that the Court has consistently held that
social measures cannot be regarded as exempt from the application of the rules
of Community law solely because they have been adopted for reasons of
demographic policy. [FN58]
FN58 Case 65/81, Reina v. Landeskreditbank Baden-Wrttemberg: [1982]
E.C.R. 33; [1982] 1 C.M.L.R. 744, para. [15].
35 Consequently, it must be held that, by precluding by regulation or
administrative practice on the grounds of their nationality employed or selfemployed workers from other Member States and the members of their families
from being attributed large-family status for the purpose of the award of special
benefits for such families and from being awarded family allowances, Greece has
failed to fulfil its obligations under Articles 48 and 52 of the E.C. Treaty, Article 7
of Regulation 1612/68, Article 7 of Regulation 1251/70, Article 7 of Directive
75/34 and Article 3 of Regulation 1408/71.
Costs
36 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be
ordered to pay the costs. Since Greece has been unsuccessful and the
Commission has applied for costs, Greece must be ordered to pay the costs.
R1 Order
On those grounds, THE COURT (Fifth CHAMBER)
HEREBY:
1. Declares that, by precluding by regulation or administrative practice on the
grounds of their nationality employed or self-employed workers from other
Member States and the members of their families from being attributed largefamily *764 status for the purpose of the award of special benefits for such
families and from being awarded family allowances, Greece has failed to fulfil its
obligations under:
-- Articles 48 and 52 of the E.C. Treaty;
-- Article 7 of Council Regulation 1612/68 on freedom of movement for workers
within the Community;
-- Article 7 of Commission Regulation 1251/70 on the right of workers to remain
in the territory of a Member State after having been employed in that State;
-- Article 7 of Council Directive 75/34 concerning the right of nationals of a
Member State to remain in the territory of another Member State after having
pursued therein an activity in a self-employed capacity; and
-- Article 3 of Council Regulation 1408/71 on the application of social security
schemes to employed persons, to self-employed persons and to members of
their families moving within the Community;
2. Orders Greece to pay the costs.

(c) Sweet & Maxwell Limited


[2001] 1 C.M.L.R. 28
END OF DOCUMENT

RINKE

JUDGMENT OF THE COURT


9 September 2003 *

In Case C-25/02,

REFERENCE to the Court under Article 234 EC by the Bundesverwaltungsgericht (Germany) for a preliminary ruling in the proceedings pending before that
court between

Katharina Rinke

and

rztekammer Hamburg,

on the interpretation of Article 5 of Council Directive 86/457/EEC of


15 September 1986 on specific training in general medical practice (OJ 1986
L 267, p. 26) and Article 34 of Council Directive 93/16/EEC of 5 April 1993 to
facilitate the free movement of doctors and the mutual recognition of their
diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165,
p. 1), and on the compatibility of those provisions with the prohibition of indirect
discrimination on grounds of sex as laid down in Council Directive 76/20 7/EEC
of 9 February 1976 on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational training and
promotion, and working conditions (OJ 1976 L 39, p. 40),
* Language of the case: German.

I - 8373

JUDGMENT OF 9. 9. 2003 CASE C-25/02

THE COURT,
composed of: G.C. Rodrguez Iglesias, President, J.-P. Puissochet, M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges,

Advocate General: L.A. Geelhoed,

Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

Ms Rinke, by D. Goergens, Rechtsanwltin,

the Swedish Government, by A. Kruse, acting as Agent,


the Council of the European Union, by A. Lo Monaco and J.-P. Hix, acting as
Agents,

the Commission of the European Communities, by M. Patakia, N. Yerrell


and B. Martenczuk, acting as Agents,

having regard to the Report for the Hearing,


I - 8374

RINKE

after hearing the oral observations of Ms Rinke, the Council and the Commission
at the hearing on 12 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 6 February
2003,

gives the following

Judgment

By order of 8 November 2 0 0 1 , received at the Court on 31 January 2002, the


Bundesverwaltungsgericht (Federal Administrative Court) referred two questions
for a preliminary ruling under Article 234 EC on the interpretation of Article 5 of
Council Directive 86/457/EEC of 15 September 1986 on specific training in
general medical practice (OJ 1986 L 267, p. 26) and Article 34 of Council
Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors
and the mutual recognition of their diplomas, certificates and other evidence of
formal qualifications (OJ 1993 L 165, p. 1), and on the compatibility of those
provisions with the prohibition of indirect discrimination on grounds of sex as
laid down in Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men and women as
regards access to employment, vocational training and promotion, and working
conditions (OJ 1976 L 39, p. 40).

Those questions have been raised in proceedings between Ms Rinke and the
rztekammer Hamburg (Hamburg Chamber of Medical Practitioners) concerning the refusal by the latter to issue Ms Rinke with a certificate of 'specific
training in general medical practice' and to confer on her the right to use the title
'General Medical Practitioner'.
I - 8375

JUDGMENT OF 9. 9. 2003 CASE C-25/02

Legal background

According to Article 1(1) of Directive 76/207, its purpose is to put into effect in
the Member States the principle of equal treatment for men and women as
regards access to employment, including promotion, and vocational training and
as regards working conditions and social security.

The principle of equal treatment, for the purpose of Article 2(1) of Directive
76/207, means that there must be no discrimination whatsoever on grounds of
sex, whether directly or indirectly, by reference in particular to marital or family
status.

Under Article 3 of Directive 76/207, the application of the principle of equal


treatment means that there must be no discrimination whatsoever on grounds of
sex with respect to the conditions of access to jobs or posts and to all levels of the
occupational hierarchy.

That provision requires Member States to take the measures necessary to abolish
any laws, regulations and administrative provisions that are contrary to the
principle of equal treatment.

The same obligation is imposed on Member States by Article 4(a) of Directive


76/207 with regard to access to all types and to all levels of vocational guidance,
vocational training, advanced vocational training and retraining.
I - 8376

RINKE

Article 2(l)(b) of Directive 86/457 provides that specific training in general


medical practice must last at least two years and must be full-time.

Article 5 of Directive 86/457 is worded as follows:

' 1 . Without prejudice to the principle of full-time training laid down in


Article 2(l)(b), Member States may authorise specific part-time training in
general medical practice in addition to full-time training where the following
particular conditions are met:

the total duration of training may not be shortened because it is being


followed on a part-time basis,

the weekly duration of part-time training may not be less than 60% of
weekly full-time training,

part-time training must include a certain number of full-time training


periods, both for the training conducted at a hospital or clinic and for the
training given in an approved medical practice or in an approved centre
where doctors provide primary care. These full-time training periods shall be
of sufficient number and duration as to provide adequate preparation for the
effective exercise of general medical practice.
I - 8377

JUDGMENT OF 9. 9. 2003 CASE C-25/02

2. Part-time training must be of a level of quality equivalent to that of full-time


training. It shall lead to a diploma, certificate or other evidence of formal
qualification, as referred to in Article 1.'

10 Directive 86/457 has been incorporated into Directive 93/16.

1 1 Article 34 of Directive 93/16 has the same content as Article 5 of Directive


86/457.

1 2 Article 25 of Directive 93/16 allows Member States to authorise specialist


training on a part-time basis under conditions approved by the competent
national authorities when training on a full-time basis would not be practicable
for well-founded individual reasons. In contrast to Article 34 of Directive 93/16,
Article 25 does not require that a certain number of training periods must be
full-time.

Dispute in the main proceedings and questions for a preliminary ruling

13 Ms Rinke is a doctor. During her specific training in general medicine she worked
part-time in a general medical practice, in particular from 1 April 1994 to
31 March 1995, working more than 60% of normal working hours as a further
training assistant.
I - 8378

RINKE

14 On 4 May 1995 Ms Rinke applied to the respondent in the main proceedings for
a certificate of 'specific training in general medical practice' and the right to use
the title 'General Medical Practitioner'. By decision of 5 May 1995 the
respondent in the main proceedings rejected that request on the ground that, in
accordance with the first sentence of the second paragraph of Article 13b of the
'Hamburgische rztegesetz' (Hamburg Law on Medical Practitioners), the
prescribed training had to be carried out in a general medical practice for at
least six months on a full-time basis.

15 Ms Rinke brought an action before the Verwaltungsgericht (Administrative


Court) against that decision, arguing that the rule in the Hamburgische
rztegesetz is contrary to the principle of non-discrimination laid down in
Community law by Directive 76/207. The requirement imposed by Article 5(1) of
Directive 86/457 ought, she submitted, to be overridden by the fundamental
principle of non-discrimination.

16 The rztekammer Hamburg contended that the full-time training required by


that legislation was objectively justified.

17 The Verwaltungsgericht dismissed the action. On 18 February 1999 the


Bundesverwaltungsgericht dismissed the appeal against the decision of the
Verwaltungsgericht. It held that the rule adopted by the Hamburg legislature was
in any event justified with regard to Community law by Article 34(1) of Directive
93/16, which corresponds to Article 5(1) of Directive 86/457. That rule, the
Bundesverwaltungsgericht held, overrode Directive 76/207 on equal treatment
because it was both more specific and more recent. It complied with the principle
prohibiting arbitrary measures and with the principle of proportionality.

18 By decision of 9 January 2001 the Bundesverfassungsgericht (Federal Constitutional Court) set aside that judgment on appeal by Ms Rinke and referred the
case back to the Bundesverwaltungsgericht. The latter, the BundesverfassungsI - 8379

JUDGMENT OF 9. 9. 2003 CASE C-25/02

gericht held, had, in effect, infringed the applicant's right to a hearing before the
proper statutory court by failing to refer the question of the relationship between
Article 34(1) of Directive 93/16 and Directive 76/207 on equal treatment to the
Court of Justice of the European Communities for a preliminary ruling. Nor was
it clear that the principles that more specific and more recent legal rules take
precedence were necessarily principles that could be applied in Community law.
Further, the principle of non-discrimination might enjoy the status of a
fundamental right in Community law and take precedence over Directive 93/16.

19 By order of 8 November 2001 the Bundesverwaltungsgericht decided to stay its


proceedings. In its view there was no doubt that excluding the possibility of
completing all training on a part-time basis affected women to a greater extent
than men, as experience showed that a greater proportion of women take
advantage of the opportunities offered by part-time work. However, it was not
certain that Directive 76/207 applied in the present case. In contrast to the cases
of discrimination of part-time workers compared with full-time workers which
have been the subject of the Court's case-law, the present case did not relate to
unfavourable consequences attached to certain employment conditions. On the
contrary, the legislature precluded a certain form of activity part-time
work for all workers concerned.

20

Further, the obligation to undertake full-time training in a general medical


practice could be justified by factors which had nothing to do with discrimination
on grounds of sex. On the other hand, Article 25 of Directive 93/16, which relates
to specialist medical training in general medical practice, did not provide for
periods of mandatory full-time training.

21 On the assumption that the requirement to undertake full-time training


constituted an infringement of the principle of non-discrimination, the question
then arose as to how to resolve such incompatibility of legal rules.
I - 8380

RINKE

22

The Bundesverwaltungsgericht therefore decided to refer the following questions


to the Court for a preliminary ruling:

'(1) Does the requirement laid down in Directives 86/457/EEC and 93/16/EEC, to
the effect that certain components of the specific training in general medical
practice completion of which confers the right to use the title "general
medical practitioner" must be undertaken full-time, constitute indirect

discrimination on grounds of sex within the meaning of Directive


76/207/EEC?

(2) If the answer to Question 1 is yes:

(a)

How is the incompatibility of Directive 76/207/EEC, on the one hand,


with Directives 86/457/EEC and 93/16/EEC, on the other, to be
resolved?

(b)

Does the prohibition of indirect discrimination on grounds of sex


constitute a basic unwritten right under Community law that overrides
any conflicting rule in secondary Community legislation?'

The questions submitted for preliminary ruling

23

It is appropriate to begin by considering Question 2.


I - 8381

JUDGMENT OF 9. 9. 2003 CASE C-25/02

Question 2

24

As the Commission rightly pointed out in its written observations, Directive


76/207 is addressed to the Member States, and not to the Community
institutions. The provisions of Directive 76/207 cannot, therefore, be treated,
as such, as imposing any obligations on the Council in the exercise of its
legislative powers.

25

However, as all the parties who presented observations in the present case have
stated, the elimination of discrimination on grounds of sex forms part of the
fundamental rights the observance of which, as general principles of Community
law, the Court has a duty to ensure (Case 149/77 Defrenne III [1978] ECR 1365,
paragraphs 26 and 27, and Case C-13/94 P. v S. and Cornwall County Council
[1996] ECR I-2143, paragraph 19).

26

It is also common ground that the respect of fundamental rights is a condition of


the legality of Community acts (Opinion 2/94 [1996] ECR I-1759, paragraph 34,

and Case C-249/96 Grant [1998] ECR I-621, paragraph 45).

27

It follows that a provision of a directive adopted by the Council in disregard of


the principle of equal treatment for men and women is vitiated by illegality.

28

The answer to Question 2 must therefore be that compliance with the prohibition
of indirect discrimination on grounds of sex is a condition governing the legality
of all measures adopted by the Community institutions.
I - 8382

RINKE

Question 1

Observations of the parties

29

Ms Rinke and the Swedish Government argue that the provisions which require
part-time training in general medicine to include a certain number of full-time
training periods place considerably more women at a disadvantage than men.
Therefore, there is indirect discrimination on grounds of sex unless those
provisions can be justified by objective factors independent of sex. However, in
this case, such a justification does not exist, as is demonstrated by the fact that all
other specialist medical training can be undertaken on a wholly part-time basis.
The presumed aim of the provisions in question, namely to improve the
protection of public health, may be achieved by other measures that are not
discriminatory.

30

The Council and the Commission take the contrary view that the principle of
equal treatment is not infringed. According to the Council, the provisions in
question do not place part-time trainee doctors at a greater disadvantage than
their full-time colleagues the conditions governing access to the profession are
the same, practical training and periods of full-time training being compulsory for
both categories of trainee doctors. The Commission argues that the question
whether that requirement affects a larger proportion of women than men must be
decided by the national courts, which must refer for that purpose to the available
statistical information. The very general findings in the order for reference are not
sufficient to satisfy the requirements for a finding of indirect discrimination.

31 In any event, the Council and the Commission submit that Article 5(1) of
Directive 86/457 and Article 34(1) of Directive 93/16 are justified by objective
I - 8383

JUDGMENT OF 9. 9. 2003 CASE C-25/02

reasons which are unrelated to any discrimination on grounds of sex. The


provisions seek to ensure training of a high quality to allow the free movement of
general medical practitioners and to guarantee a high level of health protection.
Part-time training in general medical practice poses a number of problems which
can be overcome only by certain periods of full-time training. As to the possibility
for specialist practitioners to undertake all of their training on a part-time basis,
the Commission takes the view that the latter do not occupy the same central
position in the health care system as general practitioners.

Findings of the Court

32

First, the rule that part-time training must include a certain number of periods of
full-time training does not constitute direct discrimination, since it applies to
male and female workers alike. It is thus necessary to examine whether it can
constitute indirect discrimination.

33

According to settled case-law, a provision involves indirect discrimination against


female workers when, although worded in neutral terms, it works to the
disadvantage of a much higher percentage of women than men, unless that
difference in treatment is justified by objective factors unrelated to any
discrimination on grounds of sex (see, to that effect, Case C-226/98 Jrgensen
[2000] ECR I-2447, paragraph 29).

34

It is therefore necessary to examine whether the requirement that general medical


training must include a certain number of periods of full-time training does in fact
work to the disadvantage of a much higher percentage of women than men.
I - 8384

RINKE

35

It is clear from the statistical data referred to by the Advocate General at points 3 6
and 37 of his Opinion that the percentage of women working part-time is much
higher than that of men working on a part-time basis. That fact, which can be
explained in particular by the unequal division of domestic tasks between women
and men, shows that a much higher percentage of women than men wishing t o
train in general medicine have difficulties in working full-time during part of their
training. Thus, such a requirement does in fact place women at a particular
disadvantage as compared with men.

36

In those circumstances, it is necessary to examine whether such a requirement is


justified by objective factors unrelated to discrimination on grounds of sex.

37

It must be observed in this regard that, according to the third recital in the
preamble to Directive 86/457 and the 16th recital in the preamble to Directive
93/16, specific training for a general medical practitioner must prepare him better
to fulfil his particular function, which depends to a great extent on his personal
knowledge of his patients' environment and consists in giving advice on the
prevention of illness, protecting the patient's general health and providing
appropriate treatment.

38

As the Council and the Commission rightly state, the harmonisation at


Community level of that training not only facilitates the free movement of
doctors but also contributes to a high level of public health protection in the
Community.

39

In the pursuit of those objectives, the Community legislature must be allowed a


wide margin of discretion, which cannot, however, render meaningless the
I - 8385

JUDGMENT OF 9. 9. 2003 CASE C-25/02

implementation of a fundamental principle of Community law such as the


elimination of indirect discrimination on grounds of sex.

40 In Article 5(1) of Directive 86/457 and Article 34(1) of Directive 93/16 the
Community legislature considered that adequate preparation for the effective
exercise of general medical practice requires a certain number of periods of
full-time training, both for students in hospitals or clinics and for those in
approved medical practices or in approved centres where doctors provide primary
care. That measure can be considered as being appropriate to achieve the
objectives pursued. It was reasonable for the legislature to take the view that that
requirement enables doctors to acquire the experience necessary, by following
patients' pathological conditions as they may evolve over time, and to obtain
sufficient experience in the various situations likely to arise more particularly in
general medical practice.

41 The Community legislature has left to the national legislatures the task of fixing
the number and duration of full-time training periods. It has simply stated that
those periods must be of such a number and duration as adequately to prepare for
the effective exercise of general medical practice. In view of the margin of
discretion which the Community legislature has in the matter in question, such a
measure may be regarded as not exceeding what is necessary to achieve the
objectives set out in paragraph 38.

42 It follows that the requirement in question must be regarded as justified by


objective factors independent of any discrimination on grounds of sex.
I - 8386

RINKE

43

The answer must therefore be that examination of Question 1 has failed to


disclose any factor capable of affecting the validity of the provision contained in
Article 5(1) of Directive 86/457 and Article 34(1) of Directive 93/16, according to
which part-time training in general medical practice must include a certain
number of periods of full-time training.

Costs

44

The costs incurred by the Swedish Government, the Council and the Commission,
which have submitted observations to the Court, are not recoverable. Since these
proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesverwaltungsgericht by


order of 8 November 2001, hereby rules:

1. Compliance with the prohibition of indirect discrimination on grounds of sex


is a condition governing the legality of all measures adopted by the
Community institutions.
I - 8387

JUDGMENT OF 9. 9. 2003 CASE C-25/02

2.

Examination of Question 1 has failed to disclose any factor capable of


affecting the validity of the provision contained in Article 5(1) of Council
Directive 86/457/EEC of 15 September 1986 on specific training in general
medical practice and Article 34(1) of Council Directive 93/16/EEC of 5 April
1993 to facilitate the free movement of doctors and the mutual recognition of
their diplomas, certificates and other evidence of formal qualifications,
according to which part-time training in general medical practice must
include a certain number of periods of full-time training.

Rodriguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 9 September 2003.

R. Grass
Registrar

I - 8388

G.C. Rodriguez Iglesias


President

Charles River Associates Annual Conference


5 December 2012, Brussels

Legal certainty, proportionality,


Commission's practice on remedies

effectiveness:

the

Alexander ITALIANER
Director General
Directorate General for Competition
European Commission

Ladies and Gentlemen,


It is always a pleasure to be back at the CRA conference and I would like to thank Cristina
Caffarra for inviting me again.
Today, I will speak about the Commission's practice on remedies, and more precisely about
the convergence that exists between merger control and antitrust in this area.
We seldom refer to our approach on remedies across instruments and I thought this would
be of interest to you.
Remedies lie at the core of competition law enforcement. To give you some figures,
between 2004 and October 2012, we cleared 147 mergers subject to commitments, of which
115 in Phase I and 32 in Phase II. In the same period we took 26 antitrust commitment
decisions.
In mergers, the right remedies allow companies to get on with their business plans, after a
relatively quick interaction with the Commission. In antitrust, we may either impose
remedies based on Article 7 of Regulation 1/2003, or receive them from parties and make
them binding under Article 9. When companies voluntarily offer the right commitments,
they can avoid costly procedures and possible sanctions with associated reputational risks.
The Commission's practice with merger remedies is now long-established. In antitrust, our
experience has grown since the introduction of Article 9 commitments. We have drawn on
the practical lessons learned from mergers and convergence has also been brought forward
by applying the same guiding principles in both instruments.
I believe that this convergence has led to increased predictability for companies and
practitioners and has strengthened our remedy policy overall.
I will first speak about designing good remedies, then about the Commission's recent
practice and converging trends, and I will finish with issues related to implementation.
1. The search for the right remedy: guiding principles
Defining adequate remedies is a complex exercise for all sides.
When companies propose remedies upfront, they will primarily have in mind the impact on
business. For the Commission on the other hand, what matters most is the suitability of the
remedies to fully address a particular competition concern or distortion. We also have to
think about the practical implementation of the envisaged remedies from the outset.
So these two objectives may not coincide.
This is why discussions on remedies with the parties are essential, though of course they are
not a bargaining process. A constructive dialogue allows the Commission to endorse
2

remedies which effectively eliminate competition concerns, are proportionate and provide
legal certainty.
Effectiveness, proportionality and legal certainty are the guiding principles in all our
remedies cases.
A. I consider that the most important "innovation" in our remedies these last years has been
a simplification push on our side for both mergers and antitrust, leading to greater
effectiveness.
Our case experience had taught us that if remedies are too specific, they are not practical
and the risk of circumvention is higher.
So we are encouraging remedies that are simple, workable and easy to implement. Let me
give you some illustrations:
1. In terms of antitrust cases for example, the structural remedies in the RWE, E.ON
electricity or ENI antitrust cases - about which I will talk later - were swiftly
implemented. They ensured that the abuse could not be repeated and created the
conditions for undistorted competition on energy markets. Similarly, in the Deutsche
Bahn/Arriva merger, the divestiture of Arrivas German subsidiary clearly removed
the concerns arising from the parties overlap in the German rail and bus passenger
transport markets.
2. In terms of process, our search for effectiveness and proportionality is apparent in
the increased number and quality of our market tests in mergers and antitrust.
Market testing is a key tool which allows us to tailor the remedies to the competition
concerns.
Effectiveness is also guiding more specific process elements such as for instance
buyer approval by the Commission in mergers. In oligopolistic markets for example,
this implies that significant competitors of the merging parties are unlikely to be
accepted as suitable purchasers of divested assets.
B. As to proportionality, the Commission has made it clear that a remedy cannot be made
binding if it does not adequately address competition concerns. Also, if equally effective, the
Commission will prefer the less burdensome remedy for companies.
Such a situation arose in the acquisition by Kinnevik of Billerud, two Swedish
packaging paper companies, cleared last week. We realised that the divestiture of a
whole paper mill would have been disproportionate, so following a market test, we
considered that the carve-out and divestiture of a single paper machine would be
sufficient to effectively remove our concerns. The machine will remain in a mill

owned by the merged entity, and the purchaser will operate it at the same site,
whilst being an independent competitor.
Designing good remedies means effectively removing competition concerns, through
workable and proportionate solutions for businesses.
C. Through these solutions, we offer legal certainty to the businesses concerned by telling
them that they can carry-on with their plans. We assure other market players that
competition will remain undistorted or be restored. And we set useful precedents for
businesses to know, in general, the kind of remedies we are likely to adopt in future
occasions.
Let me turn to our recent practice.
2. Remedies and convergence in practice
Legally speaking, a discussion on remedies starts from different premises in mergers and
antitrust:
Merger transactions bring about a lasting change in the structure of the firms competing in
the market. There is thus an inherent link between structural remedies and the very scope of
our merger assessment.
In antitrust, on the other hand, anti-competitive agreements or abuses of market power are
normally of a behavioural nature. When the Commission wishes to bring an infringement to
an end according to Art 7 of Reg. 1/2003, it may impose on the companies concerned either
behavioural or structural remedies, depending on the conduct at hand. Structural remedies
can however only be used in antitrust where there is no equally effective behavioural
remedy or where such behavioural remedy would be more burdensome for companies. This
may explain why behavioural remedies have classically been more frequent in antitrust.
Despite these differences, there are many similarities in the types of remedies we use. Let
me explain.
A. Structural remedies
In mergers, divestitures are an effective way to address concerns resulting from horizontal
overlaps, and may also be the best means to respond to vertical or conglomerate concerns.
For instance in phase I cases, they frequently allow us to reach the standard of being "clearcut" so that we can rule-out any serious doubts.
The benchmark for the acceptance of any other remedies in mergers is that they should be
as effective as divestitures.
We have had many such structural merger remedies recently:

In UTC/ Goodrich, the business of Goodrich in aircraft electrical power generation


and distribution was divested. The package included offering a competing engine
supplier, Rolls-Royce, an option to acquire one of Goodrich's R&D projects.
In Universal/ EMI, the remedies entailed a significant structural part through the
divestment by Universal of iconic artists, labels and local EMI entities. The
behavioural aspects of the commitments related to the removal of Most Favoured
Nation clauses as a complement to the main structural remedies. This behavioural
commitment will allow competitors to negotiate more freely with digital customers
and ensure a level-playing field. We considered this effective as the ban of Most
Favoured Nation clauses was straight-forward and could be easily monitored, in
particular by other market players.
In Glencore/Xstrata, we accepted the termination of a long-term exclusive off-take
agreement that Glencore held with the largest zinc smelter in Europe, which had a
de-facto structural impact on the market. This contract termination ensures that
competition in the European zinc metal market is preserved.
These examples demonstrate the Commission's proportionate approach when faced with
mergers raising serious competition concerns. Even such mergers can be cleared if parties
offer adequate remedies. In all these cases, the remedies effectively removed our concerns
and also entailed proportionate commitments from the companies.
In antitrust too, structural remedies have increased because they are simpler and easier to
implement, and our merger experience inspired us in this sense.
Once the mandated divestiture has taken place, the change in the market structure will solve
the antitrust concerns if behavioural commitments cannot do the job. There will be virtually
no way to circumvent the remedy or alter its effectiveness.
Many cases have dealt with major structural problems calling for structural solutions. Typical
examples are the ENI and RWE cases. We had concerns that the vertically integrated gas
incumbents had foreclosed the downstream supply markets by refusing indispensable access
to transmission capacity. The abusive conduct stemmed from the very structure of the
undertakings: the concern was that they were favouring the interests of their group and
leveraging their control of the network to maintain their dominance downstream.
We made the structural remedies binding because in our view only structural remedies
could effectively address our concerns. RWE divested its transmission grid and ENI its share
in certain international pipelines. This ensured that the abuse could never be repeated and
created the conditions for undistorted competition downstream.
Here the lessons learnt from merger divestitures also served us well.

The remedies contributed to effectively opening-up energy markets to competition in


addition to the regulatory provisions fostering liberalisation.
Let me turn to behavioural remedies.
B. Behavioural remedies
In mergers, non-divestiture remedies are to be assessed on a case-by-case basis. They can be
difficult to monitor and there are risks related to their effectiveness post-merger.
For example, the use of price caps involves a heavy degree of market intervention which we
regard as generally outside the mission of a competition authority. We have also found that
firewalls are virtually impossible to monitor.
Commitments relating to the future behaviour of the merged entity are thus only acceptable
if their workability is fully ensured by effective implementation and if they do not cause
distortive effects.
And we normally do not endorse behavioural commitments if they are just a declaration of
intent from parties not to abuse their market power.
This is why the Commission has rather limited merger experience in this regard.
In antitrust too, we tend to only accept behavioural remedies when they bring about a
positive change on the market, recognising that behavioural remedies may in certain
circumstances be the only solution to effectively remove our concerns.
We've had such examples in the financial sector with the cases concerning Standard & Poor's
and Visa MIFs.
In the Visa MIFs case we accepted commitments that capped interchange fees
relating to debit cards. The commitments increased the transparency of applicable
interchange fees for the participants and users of the Visa card scheme and removed
other limitations on merchants.
In the S&P case, we accepted that S&P abolished licensing fees that financial
institutions had to pay for the mere use of US International Securities Identification
Numbers (ISINs) in Europe. The fees for the distribution of these numbers were also
reduced.
In both cases, the behavioural commitments tackled overpricing issues and improved the
efficiency of the financial markets. Strong behavioural commitments were the only option to
address our concerns and restore a level-playing field.
Let me now refer to a third type of commitments: access commitments.

C. Access commitments
Where appropriate, and by virtue of the principle of proportionality, in some cases we
consider merger remedies short of a divestiture. These can be remedies to give access to a
critical technology or infrastructure or to ensure interoperability. Such remedies can lower
entry barriers for new competitors, without requiring more far reaching remedies such as
the complete divestiture of technology or infrastructure.
What is sensitive here is that access terms, in particular access fees, can rarely be defined in
advance; they have to leave room for the particular situation of potential beneficiaries. In
other instances such as access to technical interfaces - the release of technical information
is critical, so a monitoring mechanism is often required.
In general, access-type remedies need to contain straight-forward obligations that can be
monitored effectively. They should usually provide for a dispute settlement mechanism,
including a fast track arbitration procedure.
Over the last years the Commission has cleared several airline mergers on the basis of slot
release remedies, a type of access remedy. The legal standard is that such remedies must
lead to actual, sufficient and timely entry of new competitors. Where such conditions were
not met, a prohibition unfortunately remained the only option, such as in Ryanair/Aer Lingus
or Olympic/Aegean.
Similar remedies were used in our antitrust practice. For example in the Oneworld case, we
endorsed quasi-structural remedies under the form of slot releases at relevant airports.
Some slots have been taken-up by competitors, which shows that the remedies were
effective in opening up the market to competition.
We also accepted similar remedies ensuring interoperability between technologies in both
instruments.
In Intel/ McAfee, the commitments offered by Intel ensure that vendors of rival
products have access to the necessary information to use Intel's processing units and
chipsets. These were straight-forward obligations, monitored by a trustee. This was
an effective solution to the problems identified, and we preserved the efficiencies of
the merger. It is worth mentioning that in this case we drew inspiration from the
interoperability requirements in the Microsoft 2004 antitrust case. This shows that
the experience we gain with remedies in one area often helps us reach better
remedies in the other instrument.
A comparable example is that of the mobile security joint-venture between ARM,
Giesecke & Devrient and Gemalto approved last month in the field of trusted
execution environments for consumer electronics. Our concerns related to ARM's
very strong position upstream as a supplier of intellectual property. We accepted
7

commitments similar to those in Intel/McAfee, ensuring the effective access of


competitors to interoperability information.
In Cisco/Tandberg we considered however that a structural remedy, in combination
with a behavioural remedy, was needed to ensure interoperability with other
providers of videoconferencing solutions. The structural aspects included a transfer
of intellectual property rights to an independent body, as well as the open sourcing
of an IT protocol. The behavioural side concerned Cisco's commitment to continue to
implement this protocol and its future versions, as licensed by the independent
industry body. This was important because the availability of the protocol would not
be of use if Cisco did not itself continue using it.
Remedies relating to access have been more frequent in antitrust, with cases also relating to
interoperability - such as the Microsoft 2004 case, or access to transport capacity - EON Gas
and GDF. Such remedies may in general be appropriate where the infringement does not
derive from the structure of the undertaking but from its conduct on the market.
In the E.ON gas and GDF cases for example, the market foreclosure resulted from the
long term booking of a large share of the transport capacity by the gas incumbents.
The commitments entailed the immediate divestiture of significant capacity, as well
as a commitment not to book more than 50% of the long term bookable capacity for
15 years. These remedies were proportionate to the concerns identified, and there
was no clear need in these two cases, to go for the full divestiture of transport
networks. The remedies were effective and allowed third parties the access to the
transport capacity needed to compete downstream.
******
I think the numerous examples I have just given you show that there is increased
convergence between antitrust and mergers in our practice on remedies.
This is true both for the types of remedies and the overarching principles of effectiveness,
proportionality and legal certainty that guide us.
Over the last years, this convergence has improved the quality of our remedies, their
capacity to address competition concerns and, in parallel, their workability for companies.
This brings me to the final issue, that of implementation.
3. Implementation and monitoring
The principles of effectiveness and proportionality also underpin our remedy policy in the
implementation and monitoring phase.
In this respect the Remedies Notice has clearly set the ground in mergers and we constantly
draw inspiration from it in our antitrust cases too.
8

Implementation should be quick, simple and observable.


Swift implementation is key. It ensures that a merger does not lead to anticompetitive
conditions on the market and that antitrust concerns are quickly eliminated. For example, in
divestitures, time is crucial if the divested business is expected to remain an active
competitor in the market. This is why the Commission insists on short divestiture deadlines:
the faster the divestiture, the shorter the need for on-going monitoring, "hold-separate"
obligations, firewalls and so on.
As I mentioned earlier, we also attach great importance to market testing in both
instruments because it helps us tailor the remedies on the basis of concrete evidence.
Market-testing allows us to anticipate problems that could arise in the implementation
phase. This is why we need to hear directly from industry which options are viable and which
are not and why we encourage interested parties to reply to our market tests. This is very
useful in achieving effective and proportionate remedies.
Implementation should also be observable: monitoring should be as effective and easy as
possible, for all remedies. Here too proportionality is important. We can choose from an
array of tools like: own screening of the market, reporting obligations, trustees, or we can
leave it to the vigilance of market players.
As you know, we are investigating the alleged breach by Microsoft of its commitments to
provide Windows users with a choice screen between internet browsers.
Such alleged breaches go to the core of the effectiveness and proportionality of our
remedies policy: if companies enter into commitments, they must do what they have
committed to do or face the consequences.
In this sense, we are considering the strengthening of our monitoring for remedies decisions
when need be, for example through a more frequent appointment of monitoring trustees.
Conclusion
To achieve their purpose, remedies must be well-designed and fully implemented: this is key
in enforcing competition policy effectively and allowing markets and companies to develop
to their fullest potential.
Remedies should generate legal certainty, be effective and proportionate. Most of all, they
should have a positive impact on the market.
I hope you will agree with me that our practice in the last years and convergence between
merger and antitrust remedies has helped us meet these standards.

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