Honorable Society of Kings Inns - European Union Law Course Manual (2021)

European Union Law
Course Manual
2 © The Honorable Society of King’s Inns 2021-2022
EU Law: Course Manual
The Manual contains an overview of EU Law. You must read and research beyond the
Manual, as there is much detail which the Manual doesn’t address.
The Manual doesn’t purport to be an original contribution to the topics covered in it. In
writing it, considerable assistance has been gleaned from the textbooks and other
sources listed below and in each chapter. You will find these sources a useful first
reference point for research.
You should read the relevant pages of the Manual before lectures and tutorials. You
should supplement that by reading relevant legislation, cases, textbooks, and articles.
You must familiarise yourself with the Treaties. Have a copy of the Treaties to hand
during lectures and tutorials. The version of the Treaties which you will have during the
exam is:
Consolidated versions of the Treaty on the European Union and the Treaty on
the Functioning of the European Union (OJ 2008/C115)
The main textbooks about EU Law are:
o Barnard and Peers, European Union Law (3rd ed., Oxford University Press,
2020);
o Chalmers et al, European Union Law, Text and Materials (4th ed.,
Cambridge University Press, 2019)1;
o Craig and de Búrca, EU Law: Text, Cases and Materials (7th ed., Oxford
University Press, 2020);
o Foster, Foster on EU Law ( 7th ed., Oxford University Press, 2019);
o Hartley, The Foundations of European Community Law (8th ed., Oxford
University Press, 2014);
o Kaczorowska, European Union Law (4th ed., Routledge Cavendish, 2016);
o Weatherill, Cases and Materials on EU Law (12th ed., 2016); and
o Wyatt and Dashwood, European Union Law (6th ed., Hart Publishing, 2011).
As supplemental reading, consult:
o Barnard, The Substantive Law of the EU: The Four Freedoms (6th ed.,
Oxford University Press, 2019);
o Cahill et al, European Law (5th ed., Oxford University Press/Law Society of
Ireland, 2011.);
o Costa and Peers, Steiner & Woods EU Law (14th ed, Oxford University
Press, 2020);
o Lenaerts and Van Nuffel, European Union Law (6th ed., Intersentia, 2017);
o Nugent, The Government and Politics of the European Union (8th ed.,
Palgrave Macmillan, 2017);
o Peers et al., The EU Citizenship Directive: A Commentary (Oxford
University Press, 2014).
1 Note that many references to this book in the Manual are to the first edition: Chalmers et al,
European Union Law, Text and Materials (Cambridge University Press, 2008). The referencing
indicates when it is the second, third, etc. edition which is being cited.
© The Honorable Society of King’s Inns 2021-2022 3

Citation of EU Law
Treaty Articles
The EU is based on two separate treaties: the Treaty on European Union (TEU) and
the Treaty on the Functioning of the European Union (TFEU).
Prior to the Lisbon Treaty, the EU was based on two different treaties: the Treaty on
European Union (EU) (it has the same name as the TEU but is a different treaty) and
the European Community Treaty (EC, sometimes TEC).
Treaty articles are cited as Art. or A. For example, Article 1 TEU would be Art. 1 TEU
or A. 1 TEU.
Note that almost all books and articles will use or refer to the pre-Lisbon numbering at
some point. Please use the current numbering as much as possible to avoid confusion.
Note further that there was another major renumbering of the Treaties in 1999, so there
are three sets of Treaty numberings that have been used.
Secondary Legislation
Regulations are abbreviated in citation, e.g., Reg. 251/77. The number 77 refers to the
year of the Regulation.
Directives are similarly cited, but with the year first: Dir. 85/195.
All secondary EC legislation is contained in the Official Journal of the European

Communities (OJ) (L Series). Information on upcoming legislation and other relevant
developments is provided in the OJ (C Series).
Link to OJ: http://eur-lex.europa.eu/oj/direct-access.html
Citing EU cases
European Court Reports (ECR) was the form of citation for the official published series
which has cases from 1954 to 2011. Note: the final volumes to be printed in the ECR
had cases decided in 2011 (2011 v.12C for Series I and 2011 v.11/12 for Series II),
though the actual date of publication was 2014.
The longstanding method of citing individual cases was as follows:
C (Court of Justice)–No. of case/Year (last 2 digits) Parties

e.g. Case C-2/00 Hölterhoff v Freiesleben
ECLI
With the migration to electronic publication in 2014 came a new citation system the
ECLI (European Case Law Identifier). The Court has also retrospectively assigned an
ECLI to all decisions delivered by the European Union Courts since 1954, and to the
Opinions and Views of the Advocates General.
ECLI is a uniform identifier that has the same recognizable format for all Member
States and EU courts. It is composed of five, mandatory, elements in the following
order and each separated by a colon:
• “ECLI”: to identify the identifier as being a European Case Law Identifier;

• the country code (including EU for the European Union);
• the code of the court that rendered the judgment;
• the year the judgment was rendered;

• an ordinal number, up to 25 alphanumeric characters, in a format that is
decided upon by each Member State. Dots are allowed, but not other
punctuation marks.
For example, Case C-403/03 Schempp v Finanzamt Munchen, has a “parallel” ECLI
citation ECLI:EU:C:2005:446.
• “EU” indicates that it is a decision delivered by an EU Court or Tribunal ;

• “C” indicates that this decision was delivered by the Court of Justice. (“T” is
the General Court; “F” is the Civil Service Tribunal)
• “2005” indicates that the decision was delivered during 2005;
• “446” indicates that it is the 446th ECLI attributed in respect of that year.
Each case will still be allocated a case number.
Guidance on using the ECLI

When citing cases from the Court of Justice of the European Union the ECLI should
be treated much like a neutral citation, adding it after the case name and before the
law report citation. If there is no report citation, or the case is unreported, use the ECLI
on its own. See the examples:
Case with a report law citation:

• Case C-176/03 Commission v Council ECLI:EU:C:2005:542, [2005] ECR I-
7879.
Case without a law report citation:

• Case C-542/09 Commission v the Netherlands ECLI:EU:C:2012:346.
Paragraphs in judgments are cited as, e.g., EU:C:2005:446, para 22.
All judgments delivered after the ECR ceased will only be cited using the ECLI, unless
reported elsewhere, e.g., CMLR
How the Court of Justice refer to cases in judgments delivered since the
cessation of the ECR
Extract from Digital Rights Ireland Ltd. v. Minister for Communications, Marine and
Natural Resources and Others and Kärntner Landesregierung & Ors.
It is apparent from the case-law of the Court that the fight against international
terrorism in order to maintain international peace and security constitutes an
objective of general interest (see, to that effect, Cases C-402/05 P
and C-415/05 P Kadi and Al Barakaat International Foundation v Council and
Commission EU:C:2008:461, paragraph 363, and Cases C-539/10 P
and C-550/10 P Al-Aqsa v Council EU:C:2012:711, paragraph 130). The same
is true of the fight against serious crime in order to ensure public security (see,
to that effect, Case C-145/09 Tsakouridis EU:C:2010:708, paragraphs 46
and 47). Furthermore, it should be noted, in this respect, that Article 6 of the
Charter lays down the right of any person not only to liberty, but also to security.

Searching using Curia
1. Curia home page – Click on Case-law and select “Search form” from
the drop-down menu that appears
2. This will open this new search page – insert the name of the parties
in the relevant field

3. Clicking on search will then return the judgments/opinions with that
party name, and links to the text are available
Searching using EUR-Lex
1. The initial case law search page on EUR-Lex provides a search function using
the Case number. Enter the relevant details and click on search.
2. This returns all documents connected with the case

Law Journals
The main EU law journals are:
o CMLRev – Common Market Law Review

o DULJ – Dublin University Law Journal (Covers non-EU law, too.)
o ELR – European Law Review
o EPL – European Public Law
o ELJ – European Law Journal
o EBLR – European Business Law Review
o ECLR – European Competition Law Review
o EIPR – European Intellectual Property Review
o Euro CL – European Current Law
o ICLQ – International and Comparative Law Quarterly
o ILJ – Industrial Law Journal
o IJEL – Irish Journal of European Law
o Juris – Irish Jurist (Covers non-EU law, too.)
o LIEI – Legal Issues of European Integration
o LQR – Law Quarterly Review
o MLR – Modern Law Review
o YEL – Yearbook of European Law

EU Law Websites
EU Treaties
http://eur-lex.europa.eu/collection/eu-law/treaties.html
EU Institutions, Agencies, and Bodies

European Commission: www.ec.europa.eu. This is very comprehensive, with
information on the institutions, policies, and links to various Commission departments,
i.e., Directorates General, for such areas as competition, the environment, and
taxation.
Council of the European Union: www.consilium.europa.eu
Court of Justice of the EU: www.curia.europa.eu. This is very useful. It has condensed
reports of judgments of the Courts.
European Parliament: www.europarl.europa.eu. This is an information service

provided by the Parliament, including a calendar of Parliament proceedings, progress
of legislation, press releases, and other general information.
European Parliament’s Legislative Observatory, which keeps track of legislative
proposals: www.europarl.ie/en/news_events/legislative_observatory.
European Monetary Institute: http://www.europa.eu.int/emi/emi.html
European Movement: www.europeanmovement.ie. This is the site of an independent

and voluntary Irish organisation which informs people on European issues and one
can sign up to its mailing list for regular updates about the EU and policy.

Table of Contents
TABLE OF CONTENTS ................................................................................ 11
TABLE OF CASES........................................................................................ 21
INTRODUCTION ........................................................................................... 41
1. INTRODUCTION TO THE DIPLOMA IN LEGAL STUDIES .............................................................. 41
2. COURSE AIMS AND OBJECTIVES AND LEARNING OUTCOMES................................................. 41
2.1 Learning Outcomes at Programme Level .............................................................. 41
2.2 Learning Outcomes for EU Law ............................................................................... 42
CHAPTER 1 HISTORY OF EUROPEAN INTEGRATION AND THE TREATIES

....................................................................................................................... 45
1. REQUIRED READING................................................................................................................. 45
2. INTRODUCTION ......................................................................................................................... 45
3. THE SCHUMAN PLAN ................................................................................................................ 46
4. STAGE ONE: THE EUROPEAN COAL AND STEEL COMMUNITY TREATY (ECSC) ................... 47
5. THE FAILED PLÉVEN PLAN (FAILED EUROPEAN DEFENCE COMMUNITY AND FAILED
EUROPEAN POLITICAL COMMUNITY) ....................................................................................... 48
6. THE EUROPEAN ECONOMIC COMMUNITY (EEC) .................................................................... 49
7. THE EEC INSTITUTIONAL STRUCTURE .................................................................................... 50
8. STAGNATION IN THE 1960S-1980S ......................................................................................... 51
8.1 The Luxembourg Accords ......................................................................................... 51
8.2 The Merger Treaty 1965 .............................................................................................. 52
9. FIRST ENLARGEMENT (WIDENING)—1973 ............................................................................. 52
10. AFTER THE LUXEMBOURG ACCORDS ...................................................................................... 52
10.1 Direct Elections ............................................................................................................ 52
10.2 The Budgetary Treaties of 1970 and 1975 ............................................................. 52
10.3 Judicial Activism of the Court of Justice .............................................................. 53
10.4 Cooperation in Foreign Policy .................................................................................. 53
11. FURTHER ENLARGEMENTS (1981 AND 1986) ......................................................................... 53
12. FIRST REFORM OF THE FOUNDING TREATIES: THE SINGLE EUROPEAN ACT (SEA) ............. 53
13. INTERGOVERNMENTAL CONFERENCES IN THE 1990S ............................................................. 55
14. FURTHER REFORM: TREATY ON EUROPEAN UNION (TEU) (THE MAASTRICHT TREATY) ..... 55
15. 1995 ENLARGEMENT ............................................................................................................... 59
16. TREATY OF AMSTERDAM 1997 ................................................................................................ 59
17. THE EURO ................................................................................................................................ 62
18. THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU ........................................................... 62
19. THE TREATY OF NICE ............................................................................................................... 63
20. ENLARGEMENTS IN 2004 AND 2007 ........................................................................................ 64
21. THE FUTURE OF EUROPE DEBATE .......................................................................................... 64
22. THE LISBON TREATY ................................................................................................................ 65
22.1 Background Negotiations .......................................................................................... 65
22.2 Structure of the Lisbon Treaty ................................................................................. 66
22.3 The Reform Treaty ....................................................................................................... 66
23. A BRIEF OVERVIEW OF THE TEU AND THE TFEU POST-LISBON ........................................... 68
23.1 Treaty on the European Union (TEU) ...................................................................... 69
23.2 Treaty on the Functioning of the European Union (TFEU) ................................ 69
23.3 Charter of Fundamental Rights of the EU ............................................................. 71
24. THE EU’S RESPONSE TO THE FINANCIAL CRISIS .................................................................... 71
25. 2013 AND FUTURE ENLARGEMENTS ....................................................................................... 73
26. NOBEL PEACE PRIZE 2012 ...................................................................................................... 73
27. REFUGEE CRISIS AT THE EU’S EXTERNAL BORDERS.............................................................. 74

28 “BREXIT” AND INVOKING ARTICLE 50 TEU .............................................................................. 74
29. RECENT DEVELOPMENTS ......................................................................................................... 80
29.1 European Green Deal .................................................................................................. 80
29.2. Covid-19 Pandemic ..................................................................................................... 81
29.3. Conference on the Future of Europe ...................................................................... 82
30. RECOMMENDED READING ........................................................................................................ 83
CHAPTER 2 THE EU INSTITUTIONS........................................................... 85

1. REQUIRED READING................................................................................................................. 85
2. INTRODUCTION ......................................................................................................................... 85
2.1 History ............................................................................................................................ 85
2.2 The Institutional Structure ......................................................................................... 85
2.3 The Structure of the Treaty Provisions on the Institutions .............................. 86
3. THE POLITICAL INSTITUTIONS .................................................................................................. 86
4. THE EUROPEAN PARLIAMENT (EP) ......................................................................................... 87
4.1 Treaty Provisions ......................................................................................................... 87
4.2 History ............................................................................................................................ 87
4.3 Composition of the European Parliament ............................................................. 88
4.4 Powers of the European Parliament ....................................................................... 91
4.5 Budgetary Powers of the European Parliament .................................................. 91
4.6 Legislative Powers of the European Parliament .................................................. 91
4.7 Supervisory Powers of the European Parliament ............................................... 92
4.8 Appointment.................................................................................................................. 92
4.9 Dismissal........................................................................................................................ 93
4.10 Powers of Inquiry ......................................................................................................... 93
4.11 Litigation ........................................................................................................................ 94
5. THE EUROPEAN COUNCIL ........................................................................................................ 94
5.1 Treaty Provisions ......................................................................................................... 94
5.2 History ............................................................................................................................ 94
5.3 Composition .................................................................................................................. 94
5.4 Functions ....................................................................................................................... 95
5.5 European Council is Subject to Judicial Review ................................................. 96
5.6 Report to Parliament ................................................................................................... 96
5.7 President of the European Council ......................................................................... 96
5.8 The High Representative of the Union for Foreign Affairs and Security Policy
.......................................................................................................................................... 97
6. THE COUNCIL ........................................................................................................................... 98
6.1 Treaty Articles .............................................................................................................. 98
6.2 Composition of the Council ...................................................................................... 98
6.2.1 The Euro-Group ...............................................................................................99
6.3 Presidency of the Council ......................................................................................... 99
6.4 Decision-making in the Council ............................................................................. 100
6.4.1 Qualified Majority Voting ............................................................................. 100
6.4.2 Simple Majority .............................................................................................. 101
6.4.3 Unanimity ........................................................................................................ 101
6.5 Powers of the Council .............................................................................................. 101
7. THE COMMISSION ................................................................................................................... 102
7.1 Treaty Articles ............................................................................................................ 102
7.2 Composition of the Commission ........................................................................... 102
7.3 Appointment of the Commission and President ............................................... 103
7.4 Dismissal of the Commission ................................................................................. 104
7.5 The Powers and Functions of the Commission ................................................. 104
7.5.1 Legislative and Quasi-legislative Powers .................................................... 105
7.5.2 Agenda-setting ................................................................................................ 105
7.5.3 Executive Powers........................................................................................... 106
7.5.4 Supervisory Powers ....................................................................................... 106
7.6 Organisation of the Commission ........................................................................... 107

8. THE COURT OF JUSTICE OF THE EUROPEAN UNION ............................................................. 107
8.1 Treaty Provisions ....................................................................................................... 107
8.2 History .......................................................................................................................... 107
8.3 Overview of the Court of Justice of the European Union................................ 108
8.4 Composition of the Court of Justice and the General Court .......................... 109
8.4.1 The Court of Justice ...................................................................................... 109
8.4.2 Advocates General......................................................................................... 110
8.4.3 Qualifications of Judges and Advocates General of the Court of Justice ....
........................................................................................................................ 110
8.4.4 The General Court......................................................................................... 112
8.4.5 Qualifications of Judges of the General Court .......................................... 113
8.5 Specialised Courts .................................................................................................... 113
8.6 Types of Proceedings ............................................................................................... 114
8.6.1 Direct Actions ................................................................................................ 114
8.6.2 Preliminary Rulings ........................................................................................ 115
8.6.3 Other Cases..................................................................................................... 115
8.6.4 Limitations on Jurisdiction ........................................................................... 115
8.7 Procedure .................................................................................................................... 115
8.8 Languages ................................................................................................................... 115
9. RECOMMENDED READING ...................................................................................................... 116
CHAPTER 3 EU LEGAL ACTS AND LAW-MAKING ................................. 117

1. REQUIRED READING............................................................................................................... 117
2. INTRODUCTION ....................................................................................................................... 117
3. EU LEGAL ACTS ..................................................................................................................... 118
4. DIFFERENT TYPES OF BINDING EU LEGAL ACTS .................................................................. 119
4.1 Regulations ................................................................................................................. 119
4.2 Directives ..................................................................................................................... 120
4.3 Decisions ..................................................................................................................... 121
4.4 Non-binding EU Acts: Recommendations and Opinions ................................ 121
5. FEATURES OF EU LEGAL ACTS ............................................................................................. 122
5.1 Judicial Review by the Court of Justice .............................................................. 122
5.2 EU Legislation is required to have a Legal Basis .............................................. 122
5.3 The Requirement to Give Reasons ....................................................................... 124
6. EU LEGISLATION (LAW-MAKING) ........................................................................................... 124
6.1 Initiating EU Legislation ........................................................................................... 124
6.2 The Legislative Procedures in the European Union ......................................... 125
6.3 EU Legislative Procedures ...................................................................................... 126
6.3.1 The Ordinary Legislative Procedure - Council, Commission and the
European Parliament ..................................................................................... 126
6.3.2 Special Legislative Procedures ..................................................................... 126
6.3.3 Passerelle clauses ............................................................................................ 127
6.3.4 Summary.......................................................................................................... 127
6.4 Legislative Acts .......................................................................................................... 127
6.5 Non-legislative Acts .................................................................................................. 127
6.5.1 Non-legislative acts, expressly provided for by the Treaties ................... 128
6.5.2 Delegated acts ................................................................................................. 128
6.5.3 Implementing acts.......................................................................................... 129
6.5.4 Annulment ...................................................................................................... 130
7. COMPETENCE ......................................................................................................................... 130
7.1 Exclusive Competence ............................................................................................. 131
7.2 Shared Competence .................................................................................................. 131
7.3 Supporting Competence .......................................................................................... 131
7.4 Principles of conferral, subsidiarity and proportionality ................................ 132
8. CONCLUSION .......................................................................................................................... 132

CHAPTER 4 DIRECT EFFECT, INDIRECT EFFECT (THE DUTY OF

HARMONIOUS INTERPRETATION) AND INCIDENTAL HORIZONTAL
EFFECT ....................................................................................................... 133
2. INTRODUCTION ....................................................................................................................... 133
3. INTRODUCTION OF DIRECT EFFECT ....................................................................................... 133
4. THE DISTINCTION BETWEEN VERTICAL AND HORIZONTAL DIRECT EFFECT ......................... 135
5. DIRECT EFFECT OF DIRECTIVES ............................................................................................ 136
5.1 Directives do not have horizontal direct effect .................................................. 140
5.2 Creation of Anomalies .............................................................................................. 142
5.3 Alternatives ................................................................................................................. 142
6. INDIRECT EFFECT/THE DUTY OF CONSISTENT OR HARMONIOUS INTERPRETATION ............ 143
6.1 Incidental Horizontal Effect ..................................................................................... 148
6.2 State Liability .............................................................................................................. 149
6.3 Triangular Situations ................................................................................................ 149
7. INTERACTION OF THE PRINCIPLES OF INDIRECT EFFECT, DIRECT EFFECT AND STATE
LIABILITY ................................................................................................................................. 150
CHAPTER 5 STATE LIABILITY IN TORT FOR BREACHES OF EU LAW 153

2. INTRODUCTION ....................................................................................................................... 153
3. STATE LIABILITY FOR BREACHES OF EUROPEAN LAW OTHER THAN FAILURE TO TRANSPOSE
A DIRECTIVE ........................................................................................................................... 155
4. AN ALTERNATIVE TEST FOR STATE LIABILITY ....................................................................... 156
5. STATE LIABILITY FOR BREACHES OF EUROPEAN LAW OTHER THAN FAILURE TO TRANSPOSE
A DIRECTIVE (CONTINUED) ..................................................................................................... 158
6. IS THERE ONLY ONE TEST? .................................................................................................. 160
7. FOR NATIONAL COURTS TO ESTABLISH IF STATE LIABILITY TEST IS SATISFIED .................. 161
8. OBLIGATION APPLIES TO ALL STATE AUTHORITIES ............................................................... 163
9. THE EXTENSION OF THE LIABILITY PRINCIPLE TO PRIVATE PARTIES ................................... 163
CHAPTER 6 THE DOCTRINE OF SUPREMACY OR PRIMACY ............... 165

2. INTRODUCTION ....................................................................................................................... 165
3. THE DEVELOPMENT OF THE DOCTRINE BY THE COJ ............................................................ 166
3.1 Development of the Doctrine of Supremacy ....................................................... 167
3.2 National Courts and the Duty to Disapply ........................................................... 169
3.3 A Duty to Disapply Constitutional Provisions? ................................................. 178
3.4 Supremacy of Putative EC Law Rights ................................................................ 181
3.5 Supremacy and International Law ......................................................................... 182
4. SUPREMACY FROM THE PERSPECTIVE OF THE MEMBER STATES ........................................ 185
4.1 Germany ....................................................................................................................... 185
4.2 Ireland ........................................................................................................................... 192
5. CONCLUSIONS ........................................................................................................................ 198
CHAPTER 7 HUMAN RIGHTS IN EU LAW ................................................ 201

2. INTRODUCTION ....................................................................................................................... 201
2.1 General Principles of EU Law ................................................................................. 201

2.2 Human Rights as General Principles of EU Law ............................................... 202
3. AMENDMENTS TO THE TREATIES ........................................................................................... 205
4. WHAT RIGHTS ARE PROTECTED? .......................................................................................... 207
5. THE LISBON TREATY .............................................................................................................. 208
6. THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU ......................................................... 208
6.1 Does the Charter have horizontal direct effect? ................................................ 214
7. ACCESSION TO THE ECHR? .................................................................................................. 215
7.1 Indirect review of EU Acts pre-ECHR accession ............................................... 215
7.2 CJEU rulings on ECHR accession ......................................................................... 216
8. RULE OF LAW ......................................................................................................................... 218
CHAPTER 8 PRELIMINARY REFERENCES.............................................. 225

2. INTRODUCTION ....................................................................................................................... 225
3. TEXT OF ARTICLE 267 TFEU ................................................................................................ 226
4 THE PRELIMINARY-RULING PROCEDURE .............................................................................. 227
5. THE JURISDICTION OF THE COURT OF JUSTICE .................................................................... 227
5.1 TEU and TFEU ............................................................................................................ 227
5.2 EU Acts ......................................................................................................................... 227
5.3 International agreements ......................................................................................... 228
5.4 National laws ............................................................................................................... 228
5.5 Hypothetical cases .................................................................................................... 230
5.6 The matter must be “pending” before a national court or tribunal .............. 232
5.7 Preliminary Rulings are Binding ............................................................................ 232
6. COURT OR TRIBUNAL ............................................................................................................. 232
6.1 Whether a body is “a court or tribunal” for the purposes of Article 267 TFEU
is a matter of EU Law ................................................................................................ 232
6.2 Factors which the Court will take into account in determining whether a body
is “a court or tribunal” for the purposes of Article 267 TFEU ........................ 233
6.3 Irish “Courts or Tribunals” ...................................................................................... 239
7. DISCRETION V. OBLIGATION TO REFER ................................................................................. 240
7.1 The limitation on the discretion to refer .............................................................. 241
7.2 The Obligation to Refer ............................................................................................ 242
7.3 Which courts and/or tribunals are obliged to refer questions? .................... 243
7.4 The Irish context ........................................................................................................ 248
7.5 Exceptions to the Obligation to Refer .................................................................. 250
8. APPEALS ................................................................................................................................. 253
8.1 Procedural matters .................................................................................................... 256
9. THE RELATIONSHIP BETWEEN ARTICLE 267 TFEU AND ARTICLE 263 TFEU ..................... 256
10. ARTICLE 267 TFEU AND STATE LIABILITY ............................................................................ 257
11. URGENT PROCEDURE ............................................................................................................ 257
CHAPTER 9 INFRINGEMENT ACTIONS AGAINST MEMBER STATES .. 261

2. INTRODUCTION (ARTICLES 258-260 TFEU) ......................................................................... 261
3. INITIATION OF ARTICLE 258 TFEU PROCEEDINGS ............................................................... 263
4. OPERATION OF THE ARTICLE 258 TFEU INFRINGEMENT PROCEDURE ............................... 264
4.1 Overview of the Article 258 TFEU Procedure ..................................................... 264
4.2 The EU Pilot ................................................................................................................. 265
4.3 The Significance of the Commission’s “Reasoned Opinion” ........................ 265
4.3.1 Persistent and On-going violations of the same kind............................... 266
4.4 Commission discretion? .......................................................................................... 267
4.5 Article 258 TFEU proceedings admissible before the Court of Justice, even
after a breach is remedied ....................................................................................... 268
4.6 It is the Commission which determines the time-limits................................... 268

4.7 Effect of a determination by the Court of Justice that a Member State is in
breach of its obligations under the Treaties ....................................................... 269
4.8 The Effectiveness of Article 258 TFEU proceedings ........................................ 269
5. HISTORY OF ARTICLE 258 TFEU, INCLUDING THE POSSIBILITY OF SANCTIONS PURSUANT TO
ARTICLE 260 TFEU ............................................................................................................... 270
5.1 Lisbon amendments (Article 260 TFEU, ex Article 228 EC) ............................ 272
5.2 The Commission’s method to calculate proposed penalties ......................... 274
6. THE RELATIONSHIP BETWEEN PUBLIC AND PRIVATE ENFORCEMENT MECHANISMS .............. 277
7. TYPES OF BREACH ................................................................................................................. 278
7.1 Infringement Proceedings against Ireland .......................................................... 281
8. POTENTIAL DEFENCES OF MEMBER STATES ........................................................................ 284
9. ENFORCEMENT PROCEEDINGS POST-LISBON ....................................................................... 285
10. ARTICLE 259 TFEU ............................................................................................................... 286
11. CONCLUSION .......................................................................................................................... 289
CHAPTER 10 REVIEWING EUROPEAN UNION ACTS: ARTICLE 263 TFEU

..................................................................................................................... 291
2. INTRODUCTION ....................................................................................................................... 291
3. WHAT BODIES ARE AMENABLE TO JUDICIAL REVIEW? ........................................................... 293
4. WHAT ACTS ARE OPEN TO CHALLENGE? .............................................................................. 293
4.1 Acts under ASFJ/PJCC and CFSP ......................................................................... 296
5. LOCUS STANDI OR STANDING ................................................................................................ 297
5.1 Privileged Applicants ................................................................................................ 297
5.2 Evolution of Standing of the European Parliament .......................................... 298
5.3 Semi-privileged Applicants ..................................................................................... 299
5.4 Non-privileged Applicants ....................................................................................... 300
5.4.1 The Text .......................................................................................................... 300
5.4.2 Pre-Lisbon....................................................................................................... 300
5.4.3 Post-Lisbon ..................................................................................................... 302
5.4.4 Standing of Interest Groups......................................................................... 302
5.5 Three situations in which non-privileged applicants can bring proceedings ..
..............................................................................................................................................
........................................................................................................................................ 302
5.6 A Cumulative Test ..................................................................................................... 303
5.7 Direct Concern ............................................................................................................ 303
5.8 Individual Concern .................................................................................................... 304
5.9 A New Approach? ...................................................................................................... 307
5.10 The Lisbon Treaty and Article 263(4) TFEU ........................................................ 309
5.10.1 Regulatory acts ............................................................................................... 309
5.10.2 Other acts ........................................................................................................ 319
6. GROUNDS OF CHALLENGE/TYPES OF ILLEGALITY ................................................................. 319
6.1 Lack of Competence ................................................................................................. 319
6.2 Infringement of an essential procedural requirement ...................................... 321
6.3 Infringement of the Treaties or of any rule of law relating to their application
..............................................................................................................................................
........................................................................................................................................ 321
6.4 Misuse of Powers....................................................................................................... 322
6.5 Rights of Process ...................................................................................................... 323
7. TIME LIMIT .............................................................................................................................. 324
8. ARTICLE 264 TFEU ............................................................................................................... 324
9. RELATIONSHIP BETWEEN ARTICLE 263 TFEU AND 267 TFEU ........................................... 325

CHAPTER 11 FREE MOVEMENT OF GOODS (CUSTOMS DUTIES,
CHARGES HAVING EQUIVALENT EFFECT TO CUSTOMS DUTIES) AND
THE PROHIBITION ON DISCRIMINATORY TAX....................................... 331
2. INTRODUCTION ....................................................................................................................... 331
3. THE TREATY ARTICLES .......................................................................................................... 333
3.1 The Treaty provisions on Customs Duties and Charges having an equivalent
effect to a Customs Duty (CEES) ........................................................................... 333
3.2 Treaty Provisions on Discriminatory Taxes ........................................................ 334
3.3 Distinction between Article 30 TFEU and Article 110 TFEU ........................... 334
4. THE CUSTOMS UNION ............................................................................................................ 334
5. PROHIBITION OF CUSTOMS DUTIES AND CEES .................................................................... 334
6. EXCEPTIONS TO THE ARTICLE 30 TFEU PROHIBITION ......................................................... 337
6.1 Fees charged for a service (exchange) ................................................................ 338
6.2 Inspections? ................................................................................................................ 339
7. DISCRIMINATORY TAX PROVISIONS ....................................................................................... 340
7.1 Prohibition of Direct Discrimination ..................................................................... 340
7.2 Prohibition of Indirect Discrimination .................................................................. 341
7.3 Interaction between Article 110(1) TFEU and 110(2) TFEU ............................. 342
8. THE BOUNDARY BETWEEN ARTICLES 28-30 TFEU AND ARTICLES 110-113 TFEU ........... 343
CHAPTER 12 FREE MOVEMENT OF GOODS: QUANTITATIVE

RESTRICTIONS AND MEASURES EQUIVALENT TO QUANTITATIVE
RESTRICTIONS .......................................................................................... 349
2. INTRODUCTION ....................................................................................................................... 349
3. QUANTITATIVE RESTRICTIONS ............................................................................................... 349
4. DEFINITION OF “GOODS” ........................................................................................................ 351
5. MEASURES CAUGHT BY ARTICLE 34 TFEU .......................................................................... 351
5.1 Quantitative Restrictions ......................................................................................... 352
5.2 Measures having an Equivalent Effect to a Quantitative Restriction (MEQRS)
........................................................................................................................................ 352
5.3 Significant Cases ....................................................................................................... 353
5.4 CoJ definition of MEQRs in Dassonville .............................................................. 353
5.5 Approach of Study..................................................................................................... 355
6. DISCRIMINATORY QUANTITATIVE RESTRICTIONS AND MEQRS ........................................... 355
6.1 State supported campaigns .................................................................................... 355
6.2 Requirements Imposed on Imported Products which are not imposed on
Domestic products .................................................................................................... 356
6.3 State inaction .............................................................................................................. 357
6.4 Origin marking ............................................................................................................ 357
6.5 Administrative Practices .......................................................................................... 357
6.6 Minimum Pricing Laws ............................................................................................. 357
7. JUSTIFYING DISCRIMINATORY QUANTITATIVE RESTRICTIONS AND MEQRS ........................ 359
7.1 The Exceptions in Article 36 TFEU ........................................................................ 361
7.1.1 Public Morality ............................................................................................... 361
7.1.2 Public Policy ................................................................................................... 361
7.1.3 Public Security ................................................................................................ 361
7.1.4 Protection of health and the life of humans, animals, and plants .......... 363
7.1.5 The final sentence of Article 36 TFEU ...................................................... 366
8. INDISTINCTLY APPLICABLE RULES ......................................................................................... 367
8.1 The Decision in Cassis ............................................................................................. 367
8.1.1 Mutual Recognition ....................................................................................... 369
8.1.2 Mandatory Requirements.............................................................................. 370
8.1.3 Significance of Cassis ..................................................................................... 370

8.2 Application of Cassis in subsequent case-law .................................................. 370
8.2.1 The Sunday Trading cases ............................................................................ 372
8.2.2 An alternative distinction? ............................................................................ 373
8.3 The Decision in Keck and Mithouard .................................................................... 373
8.4 Qualifications of Keck and Mithouard .................................................................. 375
8.4.1 Rules which affect selling characterised as product rules ........................ 376
8.4.2 If properly a “selling arrangement” but has a differential affect, in law or in
fact on the marketing of products imported from other Member States
than domestic products ................................................................................. 377
8.4.3 More Recent Case-Law on Selling Arrangements..................................... 380
9. JUSTIFICATIONS OR DEFENCES TO INDISTINCTLY APPLICABLE RULES: THE MANDATORY
REQUIREMENTS ...................................................................................................................... 382
10. MANDATORY REQUIREMENTS BEYOND THE CASSIS LIST...................................................... 384
10.1 Should the same Justifications be available for discriminatory and
indistinctly applicable measures?......................................................................... 385
11. CONCLUSION .......................................................................................................................... 385
CHAPTER 13 FREE MOVEMENT OF WORKERS ..................................... 389

2. INTRODUCTION: FREE MOVEMENT OF PERSONS (WORKERS).............................................. 389
3.1 Some key points of Article 45 TFEU ..................................................................... 390
4. DIRECT EFFECT OF ARTICLE 45 TFEU ................................................................................. 391
5. SECONDARY LEGISLATION ..................................................................................................... 393
5.1 The Citizenship Directive ......................................................................................... 393
5.2 Legislation ................................................................................................................... 397
6. DEFINITION OF A WORKER ..................................................................................................... 404
6.1 Purpose of the Work ................................................................................................. 406
6.2 Retention of Worker Status ..................................................................................... 407
6.3 Job-seekers ................................................................................................................. 409
7. DIRECT AND INDIRECT DISCRIMINATION ................................................................................ 415
8. OBSTACLES TO ACCESS TO EMPLOYMENT ........................................................................... 417
8.1 Objective Justification .............................................................................................. 418
8.2 Internal Situations ..................................................................................................... 419
8.3 The Public Service Exception ................................................................................. 420
9. RESTRICTIONS ON FREE MOVEMENT .................................................................................... 422
10. FRONTIER WORKERS ............................................................................................................. 429
11. CONCLUSION .......................................................................................................................... 430
CHAPTER 14 EU CITIZENSHIP ................................................................. 431

2. EU CITIZENSHIP ..................................................................................................................... 431
3. THE TREATY PROVISIONS ON CITIZENSHIP ........................................................................... 431
4. EU CITIZENSHIP DEPENDENT ON NATIONALITY OF ONE OF THE EU MEMBER STATES ........ 432
4.1 EU Citizenship as Fundamental Status ................................................................ 436
5. THE RIGHT OF EU CITIZENS TO MOVE AND RESIDE ............................................................. 436
6. THE CITIZENSHIP DIRECTIVE ................................................................................................. 438
6.1 Right of residence up to three months ................................................................ 444
6.2 Right of residence for more than three months................................................. 445
6.3 Permanent residence ................................................................................................ 452
7. CONDITIONS OF RESIDENCE .................................................................................................. 454
8. NON-DISCRIMINATION ............................................................................................................ 457
8.1 Non-economically active persons ......................................................................... 458
8.2 Non-economically Persons and Article 24 of the Citizenship Directive ...... 461

8.3 Job-seekers ................................................................................................................. 465
8.4 Students ....................................................................................................................... 465
9. DIRECT EFFECT OF ARTICLE 21 TFEU? ............................................................................... 469
10. DO ARTICLES 20 AND 21 TFEU IMPACT ON “WHOLLY INTERNAL SITUATIONS”? .................. 471
11. POLITICAL RIGHTS OF CITIZENSHIP ....................................................................................... 483
CHAPTER 15 FREEDOM OF ESTABLISHMENT AND SERVICES ........... 487

2. INTRODUCTION ....................................................................................................................... 487
3.2 Freedom to Provide Services, Treaty Provisions .............................................. 489
4. SECONDARY LEGISLATION ..................................................................................................... 491
5. FREEDOM OF ESTABLISHMENT .............................................................................................. 493
5.1 Definition of Establishment ..................................................................................... 493
6. LINKS BETWEEN FREE MOVEMENT OF WORKERS, FREEDOM OF ESTABLISHMENT AND FREE
MOVEMENT OF SERVICES ....................................................................................................... 494
7. CHANGING APPROACH OF THE COJ TO THE FREEDOM OF ESTABLISHMENT ....................... 495
7.1 The Right of Establishment ..................................................................................... 495
7.2 Direct Effect of Article 49 TFEU ............................................................................. 496
7.3 Rights under Article 49 TFEU ................................................................................. 502
7.4 The Scope of Article 49 TFEU ................................................................................. 502
7.4.1 Can nationals rely on Article 49 TFEU in their own Member State? .... 503
7.4.2 Does Article 49 TFEU cover only discriminatory restrictions?.............. 503
7.5Difference between Freedom of Establishment and Freedom to Provide
Services ........................................................................................................................ 505
8. FREEDOM OF ESTABLISHMENT OF COMPANIES..................................................................... 507
9. FREEDOM TO PROVIDE SERVICES ......................................................................................... 515
10. ARTICLES 56 AND 57 TFEU .................................................................................................. 516
11. DIRECT EFFECT OF ARTICLE 56 TFEU? ............................................................................... 516
12. THE SCOPE OF ARTICLE 56 TFEU ........................................................................................ 517
12.1 The Need for a Cross-Border Element ................................................................. 517
12.2 The Freedom to Receive Services ......................................................................... 518
12.3 The Economic Nature of Services ......................................................................... 518
12.3.1 But what if remuneration for the service is provided by the State? ....... 519
12.4 Illegal or unethical “services” ................................................................................ 523
12.5 Non-discriminatory Provisions .............................................................................. 526
13. EXCEPTIONS, DEROGATIONS, AND JUSTIFICATIONS (ESTABLISHMENT AND SERVICES)...... 526
13.1 The “Official Authority” Exception ........................................................................ 526
13.2 The derogations and “objective justification” ................................................... 529

Table of Cases
Cases
A v. Latvijas Republikas Veselības ministrija, C-535/19; ECLI:EU:C:2021:595
................................................................................................................................................. 455
A, C-292/16, EU:C:2017:888............................................................................................ 512
A.B. & Ors v. Krajowa Rada Sądownictwa (Case C-824/18) ..... 170, 171, 172, 280
A.K. and Others v Sąd Najwyższy, (Cases C-585/18, C-624/18, C-625/18;
EU:C:2019:982) ....................................................................................... 171, 172, 220, 222
A.K. and Others v Sąd Najwyższy, (Cases C-585/18, C-624/18, C-625/18;
EU:C:2019:982) ................................................................................................................ 184
A/S Bevola and Jens W. Trock ApS v. Skatteministeriet ECLI:EU:C:2018:424
(Case C-650/16) ............................................................................................................... 511
Abanca Corporacion Bancaria Case C-70/17; ECLI:EU:C:2019:250............... 143
Adeneler v. ELOG [2006] ECR I 6057 (Case C-212/04) ............................... 146, 151
Adoui and Coruaille v. Belgian State [1982] ECR (Cases 115 & 116/ 81) 423,
424
AE Piraiki-Patraiki v. Commission [1985] ECR 207 (Case 11/82) ..................... 305
Air France v. Commission [1994] ECR II 121 (Case T-3/93) ............................... 301
Aklagaren v. Percy Mickelsson and Joakim Roos [2009] ECR I 4273 (Case C-
142/05).................................................................................................................................. 360
Akzo Chemie v. Commission [1986] ECR 1965 (Case 53/81) ............................ 296
Albatros Feeds v. Minister for the Environment [2006] IESC 52; [2007] 1 IR
221 ......................................................................................................................................... 141
Albore [2000] ECR I 5965 (Case C-423/98) ............................................................... 491
Alfa Vita (C-158 and 159/04) ............................................................................................ 379
Alleged Aid to Apple (Cases T-778/16 and T-892/16; EU:T:2020:338) .......... 322
Almelo (Case C-595/92) ..................................................................................................... 233
Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR
629 (Case 106/77) ................................................................................................... 169, 170
Amministrazione delle finanze dello Stato v. SPI and SAMI [1983] ECR 801
(Case 267-9/81) ................................................................................................................ 228
An Taoiseach v. The Commissioner for Environmental Information &
Fitzgerald [2010] IEHC 241, the High Court .......................................................... 248
Angonese v. Cassa di Riparimo di Bolzano SpA [2000] ECR 4139 (Case C-
281/98).......................................................................................................................... 136, 392
Angonese, C‑281/98, EU:C:2000:296 .......................................................................... 215
Apothekerkammer des Saarlandes v. Saarland [2009] ECR I 4171 (Case C-
171 and C-172/07) ................................................................................................... 505, 531
Apple & Pear Development Council v. KJ Lewis Ltd [1983] ECR 4083 (Case
222/82).................................................................................................................................. 356
Aranyosi and Căldăraru (Joined cases C-404/15 and C-659/15 PPU
(ECLI:EU:C:2016:198) ................................................................................................... 213
Arcor and Others, C‑152/07 to C‑154/07, EU:C:2008:426 ................................... 184
Arklow Holidays Limited v. Wicklow County Council,High Court, unreported,
Murphy J., 4 February 2004 ......................................................................................... 248
Asociaţia ‘Forumul Judecătorilor din România'Inspecţia Judiciară v. Consiliul
Superior al Magistraturii (Cases C-83/19, C-127/19, C-195/19, C-291/19,
C-355/19 and C-397/19) ................................................................................................ 171

Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117219, 237
Association de médiation sociale, C‑176/12, EU:C:2014:2 .................................. 214
Association France Nature Environnement (C-379/15, EU:C:2016:603) ....... 138
ATRAL v. Belgium [2003] ECR I-4431 (Case C-14/02) ......................................... 138
Audace (C-114/15) ............................................................................................................... 364
Austria v. Germany C-591/17, ECLI:EU:C:2019:504.............................................. 288
B and Vomero C-316/16 and C-424/16; EU:C:2018:256 ...................................... 427
B v. Land Baden-Württemberg and Secretary of State for the Home
Department v. Franco Vomero ECLI:EU:C:2018:256 (Joined Cases C-
316/16 and C-424/16) ..................................................................................................... 426
B v. Latvijas Republikas Saeima (Case C-439/19).................................................. 173
Bajratari, C-93/18, EU:C:2019:809 ................................................................................ 455
Banco de Santander SA (Case C‑274/14 EU:C:2020:17) .................................... 237
Bayerische HNL v. Council and Commission [1978] ECR 1209, 1224 (Joined
Cases 83 and 94/76, 4, 15 and 40/77)..................................................................... 157
Belgium v. Humbel [1988] ECR 5365 (Case 263/86) ............................................. 520
Belgium v. Spain [2000] ECR I 3121 (Case C-388/95) .......................................... 286
Bergandi v. Directeur général des impôts [1988] ECR 1343 (Case 252/86) . 340
Berlusconi and Others, C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270 184
Bettray v. Staatssecretaris van Justitie [1989] ECR 1621 (Case 344/87) ...... 407
Bidar v. London Borough of Ealing [2005] ECR I 2119 (Case C-209/03) ....... 467
Bogendorff von Wolffersdorff, C-438/14, EU:C:2016:401 ..................................... 442
Bond van Adverteerders and Others v. Netherlands State [1988] ECR 2085
(Case 352/85) .................................................................................................................... 518
Borker [1980] ECR 1975 (Case 138/80) ...................................................................... 235
Bosphorus Hava Yolari Turizm ve Ticaret AS (2006) 42 EHRR 1..................... 215
Boyle v. Commission [2006] ECR II-1699 (Joined Cases T-218-240) ..... 304, 305
Bresciani v. Amministrazione delle Finanze [1976] ECR I-129 (Case 87/75) 134
Bresciani v. Amminstrazione Italiana delle Finanze [1956] ECR 129 (Case
87/75) .................................................................................................................................... 339
Bressol v. Gouvernement de la communauté française [2010] ECR I 2735
(Case C-73/08) .................................................................................................................. 469
Brey C-140/12, EU:C:2013:565............................................................................... 455, 465
Brinkmann Tabakfabriken GmbH v. Statteministeriet [1998] ECR I-5255 (Case
C-319/96) ............................................................................................................................. 161
Brown v. Secretary of State for Scotland [1988] ECR 3205 (Case 197/86) .. 465
Brunner v. The European Union Treaty [1994] 1 CMLR 57 ........................... 56, 187
BS and CA (Marketing of cannabidiol (CBD)) (C-663/18, EU:C:2020:938) ... 365
Bulmer v. Bollinger [1974] 2 CMLRep 91 .................................................................... 255
Bupa v. Commission [2008] II 81 (T-289/03) ............................................................. 305
Bürgerausschuss für die Bürgerinitiative Minority SafePack — one million
signatures for diversity in Europe v. European Commission (T-646/13)
(February 3, 2017) ........................................................................................................... 125
C Broekmeulen v. Huisarts Registratie Commissie [1981] ECR 2311 (Case
246/80).................................................................................................................................. 235
Cali Apartments v. Procureur Général près la Cour d’Appel de Paris et ville de
Paris and HX v Procureur Général près la Cour d’Appel de Paris et ville de
Paris Joined Cases C-724/18 and 727/18; EU:C:2020:743 ............................ 492

Campbell v. Ireland & Anor. [2021] IEHC 162 ........................................................... 162
Campus Oil Ltd v. Minister for Industry and Energy [1984] ECR 2727 (Case
72/83) .................................................................................................................................... 361
Campus Oil v. Minister for Energy [1983] IR 82 ............................................... 253, 254
Carbonati Apuani Srl v. Commune di Carrara [2004] ECR I 8027 (Case C-
72/03) .................................................................................................................................... 337
Carpenter v. Home Secretary [2002] ECR I 6279 (Case C-260/00) ................. 530
Cartesio [2008] ECR I 9641 (Case C-210/06) ................................................... 243, 511
Centros Ltd. v. Erhvervs-og Selkassstyrelesen [1999] ECR I 1459 (Case C-
212/97).................................................................................................................................. 508
Chavez Vilchez v. Raad van bestuur van de Sociale verzekeringsbank and
Others (C-133/15) (ECLI:EU:C:2017:354)...................................................... 440, 481
Chemial Farmaceuti v. DAF SpA [1981] ECR 1 (Case 140/79) ......................... 341
Chenchooliah (C-94/18, EU:C:2019:693)............................................................ 427, 450
Christelle Deliège v. Ligue francophone de judo et disciplines associées
ASBL, Ligue belge de judo ASBL, Union européenne de judo and François
Pacquée [2000] ECR I 2549 (Case C-51/96 and C-191/97) .......................... 517
CIA Security International Sav Signalson SA and Securitel SPRL [1996] ECR
I-2201 (Case C-194/94) ................................................................................................. 148
CIBA, C-96/08, EU:C:2010:185....................................................................................... 522
CILFIT v. Ministry of Health [1982] ECR 3415 (Case 283/81) ... 250, 251, 257, 259
Cinéthèque SA v. Fédération Nationale des Cinémas Français [1985] ECR
2605 (Cases 60 and 61/84) ......................................................................... 371, 372, 384
Ciola v. Land Voralberg [1999] I ECR 2517 (Case C224/97) .............................. 174
Clean Car [1998] ECR I 2521 (Case C-350/96) ....................................................... 391
Codorniu SA v. Council [1994] ECR I 1853 (Case C-309/89) ............................. 301
Colegio de Oficiales de la Marina Mercante Espanola [2003] ECR I 10391
(Case 405/01) .................................................................................................................... 421
Collins v. Secretary of State for Work and Pensions [2004] ECR I 2703 (Case
C-138/02) ............................................................................................................ 408, 410, 412
Coman v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor
Interne ECLI:EU:C:2018:385 (C-673/16) ................................................................ 440
Commission v Belgium (Case C-543/17; EU:C:2019:573) ................................... 273
Commission v Council (Recovery of Indirect Taxes) [2004] ECR I 4829 (Case
C-338/01) ............................................................................................................................. 123
Commission v Netherlands (C-395/17, EU:C:2019:918)....................................... 279
Commission v Spain, C 610/10, EU:C:2012:781 ..................................................... 276
Commission v Spain, C-400/08, EU:C:2011:172 ..................................................... 522
Commission v Sweden, C 243/13, not published, EU:C:2014:2413................. 276
Commission v United Kingdom (C-391/17, EU:C:2019:919) ............................... 279
Commission v. Austria [1999] ECR I 7479 (Case C-328/96) .............. 265, 266, 268
Commission v. Austria [2008] ECR I 187 (Case C-524/07) ................................. 360
Commission v. Belgium [1970] ECR 237 (Case 77/69) ......................................... 284
Commission v. Belgium [1980] ECR 3881 (Case 149/79) .................................... 420
Commission v. Belgium [1983] ECR 467 (Case 301/81) ...................................... 285
Commission v. Belgium [1988] ECR 305 (Case 293/85) ...................................... 268

Commission v. Belgium [1992] ECR I 4431 (Case C-2/90) ................................. 351
Commission v. Belgium and Luxembourg (Gingerbread case) [1962] ECR 425
(Cases 2 & 3/62) ............................................................................................................... 267
Commission v. Belgium II [1982] ECR 1845 (Case 149/79) ................................ 421
Commission v. Council (Agreement with Kazakhstan) C-244/17,
EU:C:2018:662 .................................................................................................................. 298
Commission v. Council (Airport Transport Visas) [1998] ECR I 2763 (Case C-
170/96).................................................................................................................................. 322
Commission v. Council (Antarctic MPAs) C-626/15 and C-659/16,
EU:C:2018:925 .................................................................................................................. 298
Commission v. Council (Commodity Coding) [1988] ECR 5545 (Case 165/87)
......................................................................................................................................... 122, 123
Commission v. Council (ERTA case) [1971] ECR 263, 277 (Case 22/70) ..... 294
Commission v. Council (Framework Directive on Waste) [1993] ECR I 939
(Case C-155/91) ............................................................................................................... 123
Commission v. Council (Generalised Tariff Preferences case) [1987] ECR
1493 (Case 45/86) ........................................................................................................... 122
Commission v. Council (Tariff Preference) [1987] ECR 1493 (Case 45/86) . 321
Commission v. Council (Titanium Dioxide) [1991] ECR I 2867 (Case C-
300/89).................................................................................................................................. 123
Commission v. Denmark [1988] ECR 4607 (Case 302/86) .................................. 384
Commission v. France (Advance payment of tax) C-416/17, EU:C:2018:811
................................................................................................................................................. 246
Commission v. France (Case C-304/02) ..................................................................... 275
Commission v. France (Italian Table Wines) [1983] ECR 1013 (Case 42/82)
................................................................................................................................................. 360
Commission v. France [1971] ECR 1003 (Case 7/71) ........................................... 268
Commission v. France [1974] ECR 359 (Case 167/73)................................. 270, 278
Commission v. France [1983] 1013 (Case 42/82) ................................................... 357
Commission v. France [1996] ECR I 1307 (C-334/94)........................................... 270
Commission v. France [1997] ECR I 6959 (Case C-265/95) ....................... 279, 357
Commission v. France [2005] ECR I 6263 (Case C-304/02) ............................... 271
Commission v. Germany (the Insurances Services case) [1986] ECR 3755
(Case 205/84) ............................................................................................................ 507, 515
Commission v. Germany [1985] ECR 1661 (Case 29/84) .................................... 278
Commission v. Germany [1987] ECR I-1227 (Case 178/84) .............. 155, 278, 383
Commission v. Germany [1988] ECR 5427 (Case 18/87) .................................... 339
Commission v. Germany [1998] ECR I 5449 (Case C-191/95) .......................... 266
Commission v. Germany [2011] ECR I 4355 (Case C-54/08) ..................... 503, 527
Commission v. Greece (Case C-328/02)..................................................................... 267
Commission v. Greece [1988] ECR 3611 (Case 226/ 87) .................................... 285
Commission v. Greece [1990] ECR I 1567 (Case 132/88) ................................... 341
Commission v. Greece [1992] ECR I 2509 (Case C-45/91)................................. 271
Commission v. Greece [1998] ECR I 1085 (Case C-187/96) .............................. 398
Commission v. Greece [2000] ECR 5047 (Case C-387/97)................................. 271
Commission v. Greece [2005] ECR I 3177 (Case C-140/03) .............................. 505
Commission v. Greece [2011] ECR I 65 (Case C-155/09) ................................... 416
Commission v. Ireland (Case C-215/06, EU:C:2008:380) .................................... 282
Commission v. Ireland (Derrybrien) (C-261/18; EU:C:2019:955) .............. 275, 282

Commission v. Ireland (taxe d’immatriculation) ECLI:EU:C:2017:698 (C-
552/15).................................................................................................................................. 521
Commission v. Ireland (Urban waste water) Case C-427/17,
ECLI:EU:C:2019:269 ...................................................................................................... 282
Commission v. Ireland [1980] ECR 481 (Case 55/79) ........................................... 341
Commission v. Ireland [1981] ECR 1625 (Case 113/80) .............................. 357, 360
Commission v. Ireland [1982] ECR 4005 (Case 249/81) .............................. 350, 355
Commission v. Ireland [1984] ECR 317 (Case 74/82) ........................................... 269
Commission v. Ireland [2001] ECR I 4619 (Case C-30/99) ................................. 375
Commission v. Ireland [2005] ECR I 3331 (Case C-494/01) ....................... 266, 279
Commission v. Ireland [2006] ECR I 4635 (Case C-459/03) ............................... 281
Commission v. Ireland [2008] ECR I 158 (Case C-66/06) .................................... 281
Commission v. Ireland [2009] ECR I 172 (Case C-188/08).................................. 281
Commission v. Ireland [2011] ECR I 140 (Case C-82/10) .................................... 281
Commission v. Ireland [2011] ECR I 56 (Case 431/10) ......................................... 281
Commission v. Ireland and Romania (C-549 & C-550/18) ................................... 275
Commission v. Italy (Statistical returns) [1985] ECR 2629 (Case 101/84) ..... 284
Commission v. Italy [1968] ECR 423 (Case7/68) ..................................................... 351
Commission v. Italy [1969] ECR 193 (Case 24/68) ......................................... 336, 338
Commission v. Italy [1970] ECR 111 (Case 7/69) ................................................... 266
Commission v. Italy [1980] ECR (Case 21/79) .......................................................... 340
Commission v. Italy [1984] ECR 1633 (Case 50/83) .............................................. 266
Commission v. Italy [1987] ECR 2013 (Case 184/85) ............................................ 342
Commission v. Italy [1987] ECR 2717 (Case 154/85) ............................................ 356
Commission v. Italy [1992] ECR I 2353 (Case C-362/90)..................................... 268
Commission v. Italy [2003] ECR I -14637 (Case C-129/00)......................... 279, 280
Commission v. Italy [2009] ECR I 4103 (Case C-531/06)............................. 505, 531
Commission v. Italy Case C‑110/05; ECLI:EU:C:2009:66 (Italian trailers) .... 381
Commission v. Italy ECR I 4923 (Case C-212/99) .................................................. 415
Commission v. Jégo-Quéré et Cie. SA [2004] ECR I 3425 (C-263/02P) 308, 328
Commission v. Luxembourg [1996] ECR I 3207 (C-473/93) ............................... 421
Commission v. Netherlands (Dutch Vitamins) [2004] ECR I 11375 (Case C-
41/02) .................................................................................................................................... 363
Commission v. Netherlands [1982] ECR 1791 (Case 96/81) .............................. 279
Commission v. Poland (C-619/18 and C-192/18, EU:C:2019:531) .. 218, 221, 238
Commission v. Poland (C-791/19 R, EU:C:2020:277) ........................................... 222
Commission v. Poland ECLI:EU:C:2015:379 (Case C- 29/14) ........................... 269
Commission v. Portugal (Case C-398/14)................................................................... 285
Commission v. Portugal [2004] ECR I 5645 ............................................................... 415
Commission v. Portugal [2008] ECR I 2245 (Case C-265/06) .................... 355, 382
Commission v. Spain [2003] ECR I459 (Case C-12/00)........................................ 375
Commission v. Spain [2009] ECR I 3429 (Case C-423/07) ................................. 280
Commission v. UK & others [2002] ECR I 9855 (Cases C-466-476/98) ......... 278
Commission v. UK [1991] ECR I 3533 (Case C-146/89)....................................... 284
Commission v. UK [1991] ECR I-4585 (C-246/89) .................................................. 278
Commission v. UK [1991] ECR I-4585 (Case C-246/89) ...................................... 155

Commission v. United Kingdom (UHT milk) [1983] ECR 203 (Case 124/81)361,
367
Commission v. United Kingdom [1982] ECR 2793 (Case 40/82) ...................... 363
Commission v. United Kingdom [1983] ECR 2265 (Case 170/78) .................... 342
Commission v. United Kingdom [1985] ECR 1201 (Case 207/83) .................... 357
Commission v. United Kingdom [1993] ECR I 4109 (Case C-56/90) ............... 263
Commission v. United Kingdom [2006] ECR I 3969 (Case C-508/03)............. 278
Compagnie Gervais Danone v. Glanbia Foods Society Ltd [2010] IESC 36. 251
Conegate v. HM Customs and Excise [1986] ECR 1007 (Case 121/85) ........ 361
Coppinger v. Waterford County Council [1998] 4 IR 220 ...................................... 141
Corbiau, C-24/92, EU:C:1993:118 ................................................................................. 238
Council of the City of Stoke-on-Trent and Norwich City Council v. B & Q plc
[1992] ECR I 6635 (Case C-169/91)......................................................................... 372
Courage v. Crehan [2001] ECR I 6297 (Case C-453/99)...................................... 163
Cowan v. Le Tresor Public [1989] ECR 195 (Case 186/87) ................................ 518
Cresco Investigation, C‑193/17, EU:C:2019:43 ........................................................ 184
Criminal proceedings against André Marchandise, Jean-Marie Chapuis and
SA Trafitex [1991] ECR 1027 (Case C-332/89) ................................................... 372
Criminal Proceedings against Calfa [1999] ECR I 11 (Case C-348/96) .......... 424
Criminal Proceedings against Franzen [1997] ECR I 5909 (Case C-189/95) 378
Criminal proceedings against Jean-Claude Arblade and Arblade & Fils SARL
and Bernard Leloup, Serge Leloup and Sofrage SARL [1999] ECR I 8453
(Cases C-369 and 376/96) ........................................................................................... 526
Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097 (Case
C-267/91) ................................................. 373, 374, 375, 376, 377, 378, 381, 386, 387, 417
Criminal Proceedings against Maria Pupino [2005] ECR I 5285 (Case C-
105/03).................................................................................................................................. 148
Criminal Proceedings against Tankstation ‘t Heustkle vof and JEB Boermans
[1994] ECR I 2199 (Case 401/92) ............................................................................. 374
Cristini v. SNCF [1975] ECR 1085 (Case 32/75) ..................................................... 398
Crotty v. An Taoiseach [1987] IR 713 .............................................................53, 192, 196
CS and Rendón Marín ECLI:EU:C:2016:674 and ECLI:EU:C:2016:675 (Cases
C-304/14 and C-165/14) ................................................................................................ 479
Cucchi v. Avez SpA [1977] ECR 987 (Case 77/76) ................................................ 344
Cullet v. Centre Leclerc [1985] ECR 305 (Case 231/83)....................................... 361
Czech Republic v. Commission ECLI:EU:C:2017:595 (C-696/15P) ......... 128, 129
D’Hoop v. Office Nationale de L’Emploi [2002] ECR I 6191 (Case C-224/98),
......................................................................................................................................... 410, 412
Da Costa [1963] ECR 31 (Joined Cases 28-30/62) ................................................ 250
Danfoss (Case C-109/88) .................................................................................................. 233
Dano v. Jobcentre Leipzig [2014] ECR I nyr, decision of 11 November 2014
(Case C-333/13) ............................................................................................................... 412
Dano v. Jobcentre Leipzig [2014] ECR I nyr, judgment of 11 November 2014
(Case C-333/13) .............................................................................................. 461, 462, 463
Danqua v Minister for Justice Equality and Law Reform [2015] IECA 118 .... 239
Danqua v. The Minister for Justice and Equality [2017] 3 IR 192 ...................... 177
Dansk Denkavit ApS v. Danish Ministry of Agriculture [1988] ECR 2965 (Case
29/87) .................................................................................................................................... 345
De Coster [2001] ECR I 9445 (Case C-17/00) .......................................................... 236

De Kikvorsch Groothandel [1983] ECR 947 (Case 94/82) ................................... 371
DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v.
Bundesrepublik Deutschland [2010] ECR I 13849 (Case C-279/09) ........... 209
Defrenne v. SABENA (No 2) [1976] ECR I-455 (Case 43/75) ........... 135, 151, 215
Dellway Investments v. NAMA [2011] 4 I.R. 1 ........................................................... 147
Delvigne (C-650/13, EU:C:2015:648) ........................................................................... 212
Demirel [1987] ECR 3719 (Case 12/86) ...................................................................... 228
Denkavit Loire Sarl v. France [1979] ECR 1923 (Case 132/78) ......................... 344
Dereci v. Bundesministerium für Inneres [2011] ECR I 11315 (Case C-256/11)
......................................................................................................................................... 475, 476
Deutscher Apothekerverband eV v. 0800 Doc Morris NV, Jacques Waterval
[2003] ECR I 4887 (Case C-322/01)................................................................. 364, 380
Dhahbi v. Italy (Application No. 17120/09), 8 April 2014 ....................................... 216
Diatta v. Land Berlin [1985] ECR 567 (Case 267/83) ............................................. 397
Digital Rights Ireland Limited v. The Minister for Communications, Marine and
Natural Resources [2010] 3 IR 251 ........................................................................... 242
Digital Rights Ireland Limited v. The Minister for Communications, Marine and
Natural Resources ECLI:EU:C:2014:238 (C-293/12)................................. 135, 242
Dillenkofer v. Germany [1996] ECR I 4845 (Joined Cases C-178/94, C-
188/94, C-189/94 and C-190/94) ............................................................................... 160
Dominguez v. Centre informatique du Centre Ouest Atlantique
ECLI:EU:C:2012:33 (Case C-282/10) .............................................................. 145, 150
Dorsch Consult v. Bundesbaugesellschaft Berlin [1997] ECR I 4961 (Case C-
54/96) ................................................................................................................... 233, 236, 259
Drexl, 299/86, EU:C:1988:103 ......................................................................................... 532
Dwyer v. The Commissioner of An Garda Síochána & Ors. [2020] IESC 4,
[2020] 1 ILRM 389............................................................................................................ 256
Dzodzi v. Belgium [1990] ECR I 3763 (Joined Cases C297/88 and C-197/89)
................................................................................................................................................. 229
E, C-193/16, EU:C:2017:542............................................................................................ 442
Echternach and Moritz v. Netherlands Minister for Education and Science
[1989] ECR 723 (Cases 389 and 390/87)............................................................... 400
Egenberger v. Evangelisches Werk für Diakonie und Entwicklung (Case C-
414/16, EU:C: 2018:257) ....................................................................................... 135, 214
Eircom Limited v. Commission for Communication Regulations [2007] 1 I.R. 1
................................................................................................................................................. 144
Elliniki Radiophonia Tileorassi AE v. Dimotiki Etairia Pliroforissis [1991] ECR I
2925 (Case C-260/89) .................................................................................................... 530
Emesa Sugar (Free Zone) v. Aruba [2000] ECR I 665 (Case C-17/98) .......... 110
ESM Treaty (Temporary Injunctions), 2BvR 1390/12, Judgment of 12
December 2012................................................................................................................. 188
ESM/ECB, 2 BvR 2728/13, Judgment of 14 January 2014 .................................. 188
État luxembourgeois (Judicial protection against requests for information in
tax law) (Joined Cases C-245/19 and C-246/19)................................................. 202
European Union Copper Task Force v. European Commission
ECLI:EU:C:2018:176 (C-384/16P) ............................................................................ 316
Eurotunnel SA v. Sea France [1997] ECR I 6315 (Case C-408/95) ................. 327
F.C. Terhoeve v. Inspecteur van de Belastingdienstd Particulieren [1999] ECR
I 345 (Case C-18/95) ...................................................................................................... 472

Facebook Ireland and Schrems (C-311/18, Judgment of the Grand Chamber
of 16 July 2020)................................................................................................................. 254
Factortame [1991] ECR I 3905 (Case C-221/89) ............................................. 166, 502
Farrell v. Whitty & Ors. ECLI:EU:C:2017:745 (Case C-413/15) ......................... 141
Farrell v. Whitty [2008] IEHC 124 ................................................................................... 141
Farrell v. Whitty [2015] IESC 39 ...................................................................................... 141
Farrell v. Whitty, Minister for the Environment, Ireland, Attorney General, and
Motor Insurers' Bureau of Ireland [2007] ECR I 3067 (Case C-356/05)
................................................................................................................................... 141, 145
FC Terhoeve v. Inspecteur van de Belastingdienstd Particulieren [1999] ECR I
345 (Case C-18/95) ......................................................................................................... 419
Feldain v. Directeur Des Services Fiscaux [1987] ECR 3536 (Case 433/855)
................................................................................................................................................. 341
FENS spol. s r.o.v. Slovak Republic Case C-305/17; ECLI:EU:C:2018:986 . 338
Ferlini, C‑411/98, EU:C:2000:530 .................................................................................. 215
Fitzpatrick & Anor. v. Minister for Agriculture, Food and The Marine & Anor.
[2020] IESC 50 .................................................................................................................. 256
Florea Gusa v. Minister for Social Protection & Ors. ECLI:EU:C:2017:1004 (C-
442/16).................................................................................................................................. 492
Foglia v. Novello (No. 2) [1981] 3045 (Case 244/80) ............................................. 230
Foglia v. Novello (No.1) [1980] ECR 745 (Case 104/79) .............................. 230, 259
Förster v. Hoofddirective van de Informatie Beheer Groep [2008] ECR I 8507
(Case C-158/07) ............................................................................................................... 468
Foster and Others v British Gas plc (Case C-188/89) ............................................ 141
Foster v. British Gas plc [1990] ECR I 3313............................................................... 350
Foster v. British Gas plc [1990] ECR I 3313 (C-188/89)............... 133, 140, 142, 151
Foto Frost v. Hauptzollamt Lübeck-Ost [1987] ECR I-4199 (Case 314/85).. 241,
242, 259
France v. Parliament C-73/17, EU:C:2018:787 ...........................................................91
France v. UK [1979] ECR 2923 (Case 141/78) ......................................................... 286
Francovich and Bonifaci v. Italy [1991] I ECR 5357 (Case C-6/90) .......... 162, 268
Francovich and Bonifaci v. Italy [1991] I ECR 5357 (Joined Cases C-6/90 and
C-9/90) ................................................................................................ 145, 151, 153, 154, 225
Franz Grad v. Finanzamt Traunstei [1970] ECR I 825 (Case 9/70) .................. 134
Fratelli Pardini SpA v. Ministero del Commercio con l’Estero [1988] ECR 2041
(Case 338/85) .................................................................................................................... 232
Friends of the Irish Environment CLG v. Minister For Communications Climate
Action and the Environment & Ors. [2020] IEHC 383 ........................................ 317
Front National v. European Parliament [2004] ECR I 6289 (Case C-486/01P )
................................................................................................................................................. 304
Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407....................................... 222
FS v. Staatssecretaris van Justitie en Veiligheid Case C-719/19;
ECLI:EU:C:2021:506 ...................................................................................................... 449
Fuß v. Stadt Hall [2010] ECR I 12167 (Case C-429/09)........................................ 161
Garcia Avello v. Belgium [2003] ECR I-11613 (Case C-148/02)....... 457, 472, 474
García-Nieto and Others (C-299/14, EU:C:2016:114) ........................................... 464
Garkalns SIA v. Rigas dome [2012] ECR I nyr, 19 July 2012 (Case C-470/11)
................................................................................................................................................. 531

Gauweiler v. Bundestag ECLI:EU:C:2015:400, Judgment of 16 June 2015,
(Case C-62/14) .................................................................................................................. 188
Gaydarov v. Direktor na Glavna direcksia “‘Ohranitelna politsia’ pri
Ministerstvo na vatreshnite raboti [2011] ECR I 11637 (Case C-430/10) .. 424
Gebhard v. Consiglio dell' Ordine degli Avvocati e Procuratori di Milano [1995]
ECR I-4165 [1995] ECR 1 4165 (Case C-55/94) ................................ 504, 505, 516
Geddo v. Ente Nazionale Risi [1973] ECR 865 (Case 2/73) ............................... 352
Generálny riaditeľ Sociálnej poisťovne Bratislava (C-447/18, EU:C:2019:1098)
................................................................................................................................................. 399
Georgsmarianhütte Case C-135/16; ECLI:EU:C:2018:582 .................................. 326
Geraets-Smits v. Stichting Ziekenfonds; and Peerbooms v. Stichting CZ
Groep Zorgverzekeringen [2001] ECR I 5473 (Case C-157/99).................... 521
Germany and Others v. Commission [1987] ECR 3203 (Cases 281, 283-5 and
287/85).................................................................................................................................. 320
Germany v. Commission [1963] ECR 63 (Case 24/62) ................................. 124, 321
Germany v. Poland (Case C‑848/19 P) ....................................................................... 288
Gibraltar v. Council [1993] ECR I 3605 (Case C-298/89) ..................................... 300
Giuffrida v. Council [1976] ECR 1395 (Case 105/75) ............................................. 323
Google Ireland (C-482/18, EU:C:2020:141) ............................................................... 531
Greenpeace v. Commission [1995] ECR II 2205 (Case T-585/93) ................... 302
Grimaldi v. Fonds des Maladies Professionelles [1989] ECR 4407 (Case C-
322/88).......................................................................................................................... 121, 227
Groener v. Minister for Education [1989] ECR 3967 (Case 379/87)......... 397, 415
Gutmann v. Commission [1966] ECR 103 (Cases 18, 35/65) ............................. 322
H Hansen v. Hauptzollamt Flensburg [1978] ECR 1787 (Case 148/77) ......... 340
Haegeman v. Belgium [1974] ECR 449 (Case 181/73) ......................................... 228
Haraldambidis v. Cassilli [2014] ECR I nyr, judgment of 10 September 2014
(Case 270/13) .................................................................................................................... 421
Hartmann v. Freistaat Bayern [2007] ECR I 6303 (Case C-212/05)................. 391
Harz v. Deutsche Tradax GmbH [1984] ECR I-1921 (Case 79/83) .......... 143, 151
Hermes [1998] ECR I 3603 (Case 53/96) ................................................................... 228
HID, BA v. Refugee Applications Commissioner, Refugee Appeals Tribunal,
Minister for Justice, Equality and Law Reform, Ireland, Attorney General
ECLI:EU:C:2013:45 (Case C-175/11) ...................................................................... 240
HM Customs and Excise v. Schindler [1994] ECR I 1039 (Case C-275/92) . 523
HNL and Others v Council and Commission [1978] E.C.R. 1209 (Joined
Cases 83/76, 94/76, 4/77, 15/77 and 40/77) ......................................................... 160
Hoekstra v. Bestuur der Bedriffsvereniging voor Detailhandel en Ambachten
[1964] ECR 177 (Case 75/63) ..................................................................................... 404
Hoffmann- la Roche v. Centrfarm [1977] ECR 957 (Case 107/76) ................... 250
Honeywell case, Judgment of 6 July 2010.......................................................... 187, 188
Humanplasma, C-421/09 ................................................................................................... 364
Humblot v. Directeur Des Services Fiscaux [1985] ECR 1367 (Case 112/84)
................................................................................................................................................. 341
Hungary v. Slovak Republic [2012] ECR 630 (Case C-364/10) ......................... 288
Hurd v. Jones [1986] ECR 29 (Case 44/84) ............................................................... 228
Ianelli and Volpi v. Meroni [1977] ECR 557 (Case 74/76) .................................... 350
IBM v. Commission [1981] ECR 2639 (Case 60/81) ............................................... 296
ICI v. Commission (Dyestuffs) [1972] ECR 661 (Case 48/69) ............................ 320

Impact v. Minister for Agriculture [2008] ECR I 2483 (Case C-268/06) ... 146, 239
Inter-Environnement Wallonie [1997] ECR I -7411 (Case C-129/96)............... 138
Intermodal Transports BV v. Staatssecretaris van Financien [2005] ECR I
8191 (Case C-495/03) ............................................................................................ 243, 251
International Chemical Corporation v. Amministrazione Finanze [1981] ECR
1191 (Case 66/80) ........................................................................................................... 232
International Transport Workers’ Federation and Finnish Seamen’s Union,
C‑438/05, EU:C:2007:772..................................................................................... 215, 513
Internationale Handelsgesellschaft [1970] ECR 1125 (Case 11/70) ....... 165, 168,
178, 185, 203
Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle fur Getreide
und Futtermittel [1974] CMLR 540 ............................................................................ 186
Inuit Taparitt Kanatami and Others v. European Parliament and Council [2011]
ECR II 5599 (Case T-18/10) ....................................................................... 310, 312, 313
Inuit Taparitt Kanatami and Others v. European Parliament and Council [2013]
ECR I nyr, 3 October 2013 (C-583/11P) ........................................ 303, 308, 313, 328
Inuit Taparitt Kanatami and Others v. European Parliament and Council, 6
September, 2011 (Case T-18/20) .............................................................................. 309
Ioannidis [2005] ECR I 8275 (Case C-258/04) .......................................................... 411
IPSO v. ECB T-713/14; ECLI:EU:T:2016:727 ........................................................... 306
Italian State v. Gilli and Andres [1980] ECR 2071 (Case 788/79) ..................... 370
J M Raulin v. Minister van Onderwijs en Wetenschappen [1992] ECR I-01027
(Case C-357/89) ............................................................................................................... 406
James Elliott Construction Ltd. v. Irish Ashphalt Ltd. (Case C-613/14) ........... 252
James Elliott Construction Ltd. v. Irish Ashphalt Ltd. [2014] IESC 74.............. 252
Jany and Others v. Staatssecretaris van Justitie [2001] ECR I 8615 (Case
268/99).......................................................................................................................... 493, 523
Jégo-Quéré et Cie v. Commission [2002] ECR II 2365 (Case T-177/01)307, 328
Job Centre [1995] ECR I 3361 (Case C-111/94) ...................................................... 235
Jobcenter Berlin Neukölln v. Alimanovic (Case C-67/14)
(ECLI:EU:C:2015:597) ........................................................................................... 462, 465
Jobcenter Krefeld (C-181/19, EU:C:2020:794) ......................................................... 400
John O’Flynn v. Adjudication Officer [1996] ECR I 2617 (Case 237/94) ........ 416
John Walker v. Ministteriet for Skatter [1986] ECR 875 (Case 243/84) .......... 342
Junqueras Vies (Case C-502/19, EU:C:2019:1115) ..................................................90
K. and H. F. C-331/16 and C-366/16; EU:C:2018:296 ........................................... 425
K.A. C-82/16; EU:C:2018:308 .......................................................................................... 443
Kadi v. Council [2008] ECR I 6351 (Joined Cases C-402/05 P and C-415/05
P) ........................................................................................................................... 182, 204, 323
Kamer van Koophandel en Fabrieken voor Amsterdam v. Inspire Art Ltd.
[2003] ECR I 10155 (Case C-167/01) ...................................................................... 510
Kampelmann and Others, C-253/96 to C-258/96, EU:C:1997:585 ................... 142
Kapferer v. Schlanck and Schick [2006] ECR I -2585 (Case C-234/04) ......... 178
Kelly v. National University of Ireland [2008] IEHC 464......................................... 227
Kempf v. Staatssecretaris van Justitie [1986] ECR 1741 (Case 139/85) ....... 405
Kenny Roland Lyckeskog [2002] ECR I 4839 (Case C-99/00) ........................... 243
Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398 ...... 222
Klohn v. An Bord Pleanála [2021] IESC 30 ................................................................ 501

Knoors v. Secretary of State for Economic Affairs [1979] ECR 399 (Case 115/
78) .......................................................................................................................................... 503
Kobler v. Austria [2003] ECR I-10239 (C-224/01) ............................................ 163, 257
Kohll v. Union de Caisses de Maladie [1998] ECR I 1931 (Case C-158/96). 520
Konle v. Austria [1999] ECR I-3099 (Case C-302/97) ............................................ 154
Konsumentombudsmannen v. De Agostini (Svenska) Forlag AB and TV-Shop
I Sverige AB [1997] ECR I-3843 (C-34-36/95) ...................................................... 377
Konsumentombudsmannen v. Gourmet International Products [2001] ECR I
1795 (C-405/98) ................................................................................................................ 378
Krah (C-703/17, EU:C:2019:850) ........................................................................... 398, 403
Kremzow v. Austria [1997] ECR I 2629 (Case 299/95).................................. 207, 228
Križan and Others, C-416/10, EU:C:2013:8 ............................................................... 170
Kruger [1997] ECR I 520 (Case 334/95) ...................................................................... 255
La Quadrature du Net and Others, C-511/18, C-512/18 and C-520/18,
EU:C:2020:791 .......................................................................................................... 171, 172
Lair v. Universitat Hannover [1988] ECR 3161 (Case 39/86) .............................. 465
Land Baden-Württemberg v. Tsakouridis [2010] ECR I 11979 (Case
C-145/09) ............................................................................................................................. 427
Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Land Nordrhein-
Westfalen [1997] ECR I 3171 (Joined cases C-64/96 and C-65/96)............ 419
Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet and Others
[2007] ECR I 11767 (Case C-341/05) ...................................................................... 530
Lawrie- Blum v. Land Baden Wurtettemberg [1986] ECR 2121 (Case 66/85)
................................................................................................................................ 404, 405, 421
Lebon [1987] ECR 281 (Case 316/85) ......................................................................... 409
Leclerc-Siplec (Case C- 412/93) ..................................................................................... 379
Leonesio v. Ministero dell’ Agricolura delle Foreste [1972] ECR I 287 (Case
93/71) ............................................................................................................................ 119, 134
Les Verts v. Parliament (Case 294/83; [1986] ECR 1339) ................................... 218
Levin v. Staatssecretaris van Justitie [1982] ECR 1035 (Case 53/81) .... 404, 406
Liberos v. Commission (Case C-171/00P).................................................................. 112
Lidl Belgium, C-414/06, EU:C:2008:278 ...................................................................... 512
Lofinmakin (A Minor) v. Minister for Justice Equality and Law Reform and
others [2011] IEHC 116 ................................................................................................. 249
Lounes v. Secretary of State for the Home Department ECLI:EU:C:2017:862
(C-165/16) ................................................................................................................... 439, 440
Luisi and Carbone v. Ministero del Tesoro [1984] ECR 377 (Joined Cases
286/82 and 26/83) ............................................................................................................ 518
M. v. MJELR (Case C-560/14)......................................................................................... 211
M.A.S and M.B. EU:C:2017:936 (Case C-42/17) ..................................................... 178
M.G. Tjebbes C 221/17; ECLI:EU:C:2019:189 ......................................................... 433
M.M. v. MJELR [2013] IEHC 9......................................................................................... 211
Maher v. Minister for Agriculture and Food [2001] 2 IR 139 ........................ 119, 197
Manfredi (Cases C-205/04 to C-298/04)...................................................................... 163
Mangold v. Helm [2005] ECR I 9981 (Case C-144/04) ................. 135, 138, 139, 204
Margarit Panicello, C-503/15, EU:C:2017:126 .......................................................... 238
Marleasing SA v. La Comercial Internacional de Alimentaction SA [1990] ECR
I-4135 (Case C-106/89) ................................................................................................. 143

Marshall v. Southampton and South-West Hampshire Area Health Authority
(Teaching) (No.1) [1986] ECR I-723 (Case 152/84) ......... 133, 140, 142, 143, 151
Martin v. An Bord Pleanála, Ireland and the Attorney General [2008] 1 IR 336
................................................................................................................................................. 250
Martinez-Sala v. Freistaat Bayern [1998] ECR I 2691 (Case C-85/96) ... 458, 460
Maurin [1996] ECR I-2909 (Case C-144/95) .............................................................. 229
Max-Planck-Gesellschaft zur Förderung der Wissenschaften C-684/16,
EU:C:2018:874 .................................................................................................................. 143
McB v. E [2010] ECR I 8965 (C-400/20 PPU) ........................................................... 239
McBride v. Galway Corporation [1998] 1 IR 485 ...................................................... 135
McCarthy and Others, C-202/13, EU:C:2014:2450 ................................................. 441
McCarthy v. Home Secretary [2011] ECR I 03375 (Case C-434/09) 473, 474,
475, 476
McDonagh v. Ryanair Ltd ECLI:EU:C:2013:43 (Case C-12/11)......................... 239
McNamara v. An Bord Pleanala [1998] ILRM 313 ........................................... 232, 248
ME v. Refugee Applications Commissioner and the Minister for Justice,
Equality and Law Reform [2011] ECR I 13905 (Case C-493/10) .................. 207
Meagher v. Minister for Agriculture [1994] 1 IR 329................................................ 197
Melloni v Ministerio Fiscal ECLI:EU:C:2013:107 (Case C-399/11) . 166, 171, 173,
178, 179, 214
Meroni and Co. Industrie Metallurgiche SpA v. ECSC [1957-8] ECR 133
(Case 9/56) ......................................................................................................................... 320
Metock and Others, C-127/08, EU:C:2008:449 ................................................ 440, 441
Metock v. Minister for Justice Equality and Law Reform [2008] ECR I 6241 (C-
127/08).................................................................................................................................. 239
Metock v. Minister for Justice Equality and Law Reform [2008] ECR I-6241
(Case C-127/08) ....................................................................................................... 438, 439
Miasto Łowicz and Prokurator Generalny (Joined Cases C-558/18 and C-
563/18).................................................................................................................................. 229
Micheletti v. Delegación del Gobierno Cantabria [1992] ECR I 4239 (Case C-
369/90).......................................................................................................................... 433, 434
Microban International Ltd. v. Commission (T-262/10) .......................................... 312
Minister for Justice and Equality (Deficiencies in the system of justice),
C-216/18 PPU, EU:C:2018:586 .......................................................................... 219, 221
Minister for Justice and Equality and Commissioner of An Garda Síochána,
C‑378/17, EU:C:2018:979..................................................................................... 170, 183
Minister for Justice and Equality v Lanigan ECLI:EU:C:2015:474 (C-237/15
PPU) ...................................................................................................................................... 258
Minister for Justice Equality and Law Reform v Altaravicius [2006] 3 IR 148 148
Minister for Justice, Equality and Law Reform & Anor. v. The Workplace
Relations Commission [2017] IESC 43.................................................................... 175
Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 ........ 145
Minister for Justice, Equality and Law Reform v. Equality Tribunal [2009] IEHC
72 ............................................................................................................................................ 174
Minister voor Immigratie, Integratie en Asiel v O, and v S, [2014] ECR I nyr,
judgment of 12 March 2014 (Cases C-456/12 & C-457/12) ............................ 479
Ministere de l’Interieur v. Olazabal [2002] ECR 10981 (Case C-100/01)423, 424
Ministero delle Finanze v. INOGE’90 Srl [1998] ECR I-6307 (Case C-10-
22/97) .................................................................................................................................... 177

Ministre Public v. Even and ONPTS [1979] ECR 2019 (Case 207/78)............ 398
MM v. Minister for Justice Equality and Law Reform, Ireland and Attorney
General ECLI:EU:C:2012:744 (Case C-277/11) ................................................. 239
General ECLI:EU:C:2012:744 (C-277/11) ............................................................. 210
Morgenbesser v. Consiglio dell’Ordine degli avvocati di Genova [2003] ECR I
3467 (Case C-313/01) .................................................................................................... 499
Morson and Jhanjan v. Netherlands [1982] ECR 3723 (Cases 35 and 36/82)
................................................................................................................................................. 472
Moser [1984] ECR 2539 (Case 180/83) ....................................................................... 228
MRAX v. Belgium [2002] ECR I 6591 (Case C-459/99) ........................................ 394
MSS v. Belgium and Greece, Application No. 30696/09 ....................................... 215
Municipality of Almelo v. Energiebedriff Ijsselmij [1994] ECR I 5789 (Case C-
393/92).................................................................................................................................. 351
NA (Case C-115/15, EU:C:2016:487) ........................................................................... 449
Nathan v. Bailey Gibson Ltd [1998] 2 IR 162............................................................ 144
National Grid Indus, C-371/10, EU:C:2011:785 ........................................................ 511
Ninn-Hansen v. Denmark, CE:ECHR:1999:0518DEC002897295 .................... 221
Nold v. Commission [1974] ECR 491 (Case 4/73) ................................. 168, 201, 204
Noordwijks Cement Accord [1967] ECR 75 (Cases 8-11/66).............................. 295
Nordsee Deutsche Hochseefischerei GmbH v. Reererei [1982] ECR 1095
Case 102/81 ....................................................................................................................... 235
North of England P & I Association Ltd. v. Bundeszentralamt fur Steuern Case
C-786/19 .............................................................................................................................. 515
NS v. Home Secretary (Case C-411/10) ..................................................................... 207
NV International Fruit Company v. Commission [1971] ECR 411 (Cases 41-
44/70) .................................................................................................................................... 304
O, S and L v. Maahanmuuttoviras [2012] ECR I nyr, judgment of 6th December
2012 (Joined Cases C-356/11 and 357/11) ................................................... 476, 479
O. and B., C-456/12, EU:C:2014:135 ........................................................................... 440
OCS One Complete Solution Limited v. Dublin Airport Authority Plc. [2014]
IEHC 306 ............................................................................................................................. 147
OCS One Complete Solutions Limited v Dublin Airport Authority plc. [2-15]
IESC 6................................................................................................................................... 147
Officier van Justitie v. Sandoz BV [1983] ECR 2445 (Case 174/82) ........ 363, 366
Ogieriakhi v. Minister for Justice and Equality & Ors. [2016] IECA 46............. 159
Ogieriakhi v. Minister for Justice and Equality & Ors. [2017] IESC 52............. 159
Ogieriakhi v. Minister for Justice and Equality, Ireland, Attorney General and
An Post [2014] ECLI:EU:C:2014:2068 (Case C-244/13) .......................... 158, 241
An Post [2014] IEHC 562 .............................................................................................. 158
Olympique Lyonnais SASP v. Oliver Bernard and Newcastle UFC [2010] I
2177 (Case C-325/08) .................................................................................................... 418
Omega Spielhallen [2004] ECR I 9609 (Case C-36/02) ................................ 514, 523
Onuekwere v Secretary of State for the Home Department [2014] ECR I nyr,
judgment of 16 January 2014 (Case C-378/12) ................................................... 453
OO and DO v. The Minister for Justice Equality and Law Reform [2012] IESC
49 ............................................................................................................................................ 472
Openbaar Ministeries v. Van Tiggele [1978] ECR 25 (Case 82/77) ................. 357

Opinion 2/13 ECLI:EU:C:2014:2454, Judgment of 18 December 2014 .......... 217
Opinion 2/94 [1996] ECR I 1759 ..................................................................................... 216
Ordre des Avocats v. Klopp [1984] ECR 2971 (Case 107/83) ............................ 504
Orlandi and Others v. Italy, CE:ECHR:2017:1214JUD002643112 ................... 442
Országos (C-924/19 PPU; EU:C:2020:367) ............................................................... 185
OSA, C‑351/12, EU:C:2014:110 ..................................................................................... 184
Outokumpu Oy [1998] ECR I 1777 (Case C-213/96) ..................................... 341, 345
P Kadi v. Council [2008] ECR I 6351 (Cases C-402/05 P and C-415/05) ...... 297
Parliament v. Council (Cabotage II) [1992] ECR I 4593 (Case C-65/90) .. 91, 127
Parliament v. Council (Case C-263/14, EU:C:2016:435) ...................................... 123
Parliament v. Council (Chernobyl) [1990] ECR I 2041 (Case 70/88) ............... 298
Parliament v. Council (General Tariff Preferences) [1995] ECR I 693 (Case C-
65/93) .............................................................................................................................. 92, 127
Parliament v. Council [1991] ECR I 4529 (Case 70/88) ........................................ 299
Parris, C-443/15, EU:C:2016:897 ................................................................................... 441
Partie Ecologiste “Les Verts” v. Parliament [1986] ECR 1993 (Case C-294/83)
................................................................................................................................................. 299
Payir v. Secretary of State for the Home Department [2008] ECR I 203 (Case
294/06).................................................................................................................................. 406
Pelham and Others, C-476/17, EU:C:2019:624 ....................................................... 174
Peňarroja Fa [2012] ECR I 1785 (Case C-372/09 and 373/09).......................... 527
Pensionsversicherungsanstalt (Cessation of activity after reaching retirement
age), C-32/19, EU:C:2020:25 ...................................................................................... 451
People (DPP) v. Ferris (1985) 3 Frewen 114............................................................. 249
Petrea ECLI:EU:C:2017:684 (C-184/16) ..................................................................... 424
Petrie v. Commission (Case T-191/99) ........................................................................ 263
PFE (C-689/13, EU:C:2016:199) .................................................................................... 245
Pfeiffer v. Deutches Rotes Kreuz [2004] ECR I-8835 (Joined Cases C-397-
403/01).................................................................................................................................. 144
Pfleiderer AG v. Bundeskartellamt (Case C-360/99) .............................................. 163
PH Asscher v. Staatssecretaris van Financien [1994] ECR I 1137 (Case C-
107/94).................................................................................................................................. 503
PI v. Oberbürgermeisterin der Stadt Remscheid [2012] ECR I nyr, decision of
22 May 2012 (Case 348/09)......................................................................................... 426
Plaumann & Co v. Commission [1963] ECR 95 (Case 25/62) 304, 305, 307,
308, 309, 312, 313
Poland v. Commission (T-883/16) .................................................................................. 288
Polbud – Wykonawstwo ECLI:EU:C:2017:804 (Case C-106/16)....................... 510
Poltorak, C-452/16 PPU, EU:C:2016:858 ................................................................... 221
Popławski (C-573/17, EU:C:2019:530) ............................................... 172, 182, 184, 185
Pöpperl (C-187/15, EU:C:2016:550) ............................................................................. 421
Power v. Guardian PMPA Insurance Ltd. [2007] IEHC 105. ............................... 146
Pretore di Salo (Case C-14/86) ....................................................................................... 233
PreussenElecktra AG v. Schleswag AG [2001] ECR I 2099 (Case C-379/98)
................................................................................................................................................. 360
Pringle v. Government of Ireland, Ireland and the Attorney General [2012]
ECR, nyr, 27th November 2012 (Case 370/12) ..................................................... 293
Pringle v. Government of Ireland, Ireland and the Attorney General
ECLI:EU:C:2012:756 (Case 370/12) .................................................................. 73, 196

Pringle v. Ireland [2012] IEHC 296; [2012] IESC 47 ......................................... 72, 196
Procureur du Roi v Dassonville [1974] ECR 837 (Case 8/74) 353, 354, 355, 367,
370, 383, 385, 386
Procureur du Roi v. Marc JVC Debauve [1980] ECR 833 (Case 52/79) ........ 517
Pubblico Ministero v. Tullio Ratti [1979] ECR I-1629 (Case 148/78) ....... 133, 137,
138, 139, 151
Public Prosecutor v. Kolpinghuis Nijmegen BF [1987] ECR 3969 (Case 80/86)
................................................................................................................................................. 145
Puligienica Facility Esco SpA (PFE) v. Airgest SpA (Case C-689/13) ............. 178
Pupino (Case C-105/03) [2005] E.C.R. I-05285 ....................................................... 148
Puppinck & Ors. v. Commission (C-418/18 P, EU:C:2019:1113) ...................... 125
R (Miller and another) v. Secretary of State for Exiting the European Union
[2017] 2 WLR 583 ...............................................................................................................76
R v. Bouchereau [1977] ECR 1999 (Case 30/77) ............................................ 279, 423
R v. Henn and Darby [1979] ECR 3795 (Case 34/79) ................................... 352, 361
R v. HM Treasury and Commissioners for Inland Revenue ex parte Daily Mail
and General Trust plc [1988] ECR 3483 (Case 81/87).............................. 503, 509
R v. HM Treasury, ex parte British Telecommunications plc [1996] ECR I 1631
(Case C- 392/93) .............................................................................................................. 158
R v. Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of
State for the Home Department [1992] ECR I 4265 (C-370/90) .................... 419
R v. Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of
State for the Home Department [1992] ECR I 4265 (Case C-370/90) ........ 397
R v. Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I 745
(Case C-292/ 89) ............................................................................................. 408, 409, 410
R v. Intervention Board for Agricultural Produce, ex parte Accrington Beef
[1996] ECR I 6691 (Case C-241/95)......................................................................... 327
R v. Ministry for Agriculture, Fisheries and Food ex parte Hedley Lomas
(Ireland) Ltd [1996] ECR I-2553 (Case C-5/94) .................................................... 159
R v. Saunders [1979] ECR 1129 (Case 175/78) ...................................................... 471
R v. Secretary of State ex parte Kaur [2001] ECR I-1237 (Case C-192/99) . 432
R v. Secretary of State for Transport, ex parte Factortame [1991] ECR I 3905
(Case C-221/89) ............................................................................................................... 493
R v. the Secretary of State for Transport, ex parte Factortame Ltd. [1990] ECR
1 243 (Factortame No.1) (Case C 213/89) ............................................................. 181
R v. Thompson [1978] ECR 2247 (Case 7/78) ......................................................... 361
Ramos Nunes de Carvalho e Sá v. Portugal,
CE:ECHR:2018:1106JUD005539113 ...................................................................... 222
Raugevicius, C-247/17, EU:C:2018:898 ...................................................................... 219
Re Wunshe Handelsgesellschaft, decision of 22nd October 1986, [1987] 3
CMLR 225 ........................................................................................................................... 186
Recorded Artists Actors Performers Ltd. v. Phonographic Performance
(Ireland) Ltd. & Ors. [2021] IEHC 22 ......................................................................... 256
Rendón Marín (C-165/14, EU:C:2016:675) ................................................................ 482
Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Brantweinn .... 351, 367,
386, 387
Reyners v. Belgium [1974] ECR 63 (Case 2/74) ............................. 133, 496, 499, 526
Reyners v. Belgium [1974] ECR I-631 (Case 2/74)......................................... 135, 138

Rieser Internationale Transporte GmbH v. Autobahnen- und Schnellstraßen-
Finanzierungs-AG (Asfinag) [2004] ECR I 4777 (Case C-157/02) ............... 178
Rimšēvičs and ECB v Latvia, C-202/18 and C-238/18, EU:C:2019:139 ......... 219
Rina Services and Others EU:C:2015:399 (C-593/13) .......................................... 491
Rinau [2008] I ECR 5271 (C-195/08 PPU) ................................................................. 258
Robert Fearon & Co v. Irish Land Commission [1984] ECR 3677 (Case
182/83).................................................................................................................................. 503
Roquette Frères SA v. Council [1980] ECR 3333 (Case 138/79) ...................... 321
Roquette Frères SA v. Directeur général de la concurrence, de la
consommation et de la répression des fraudes [2002] ECR I 9011 (Case C-
94/00) .................................................................................................................................... 205
Roquette Frères v. Council [1980] ECR 3333 (Case C138/79) .................... 91, 126
Rothley v. European Parliament [2002] II 579 (T-17/00) ....................................... 306
Rothley v. European Parliament [2004] ECR I 3149 (C-167/02P)..................... 306
Rottmann [2010] ECR I 1449 (Case C-135/08) ............................... 433, 434, 435, 436
Royer [1977] ECR 497 (Case 48/75) ............................................................................ 391
RPO EU:C:2017:174 (Case C-390/15) ...........................................................................92
Ruhr v. High Authority [1960] ECR 47 (Joined Cases 16, 17 and 18/59) ....... 202
Ruiz-Zambrano v. Office national de l’emploi (ONEm) [2011] ECR I 1177
(Case C-34/09) ....................................................... 472, 474, 475, 476, 479, 480, 481, 482
Rutili v. Ministre de l’Intérieur [1975] ECR 1219 (Case 36/75) ........................... 423
Ryanair v. Commission (Case T-259/20) .......................................................................81
Sacchi [1974] ECR 409 (Case 155/73) ........................................................................ 351
Saint-Prix v. Secretary of State for Work and Pensions [2014] ECR I nyr,
decision of 19 June 2014 (Case C-507/12)............................................................ 409
Salamander AG v Parliament and Council [2000] ECR II 2487 (Cases T-172,
175 and 177/98) ................................................................................................................ 300
Schmidberger v. Austria [2003] ECR I 5659 (C-112/00) ..... 207, 214, 384, 385, 514
Secretary of State for the Home Department v. Akrich [2003] ECR I 9607
(Case C-109/01) ............................................................................................................... 397
Secretary of State for the Home Department v. M.G. [2014] ECR I nyr,
judgment of 16 January 2014 (Case C-400/12) ................................................... 427
Secretary of State for the Home Department v. Rahman [2012] ECR I nyr,
decision of 5 September 2012 (Case C-83/11) .................................................... 444
Semarco Casa v. Sindaco del Commune di Erbusco [1996] ECR I 2975 (C-
418-93) ................................................................................................................................. 375
Simmenthal SpA v. Amministrazione delle Finanze dello Stato [1978] ECR
1453(Case 70/77)............................................................................................ 166, 169, 177
Smith v. Meade & Anor. [2016] IECA 389 ................................................................... 197
Smith v. Meade & Ors. (Case C-122/17) ..................................................................... 144
Smith v. Meade & Ors. ECLI:EU:C:2018:631 (C-122/17) ............................. 144, 184
Smith v. Meade [2009] 3 IR 335...................................................................................... 197
Sociaal Fonds voor de Diamantarbeiders v. S.A. Ch. Brachfeld & Sons [1969]
ECR 211 (Joined Cases 2 and 3/69) ................................................................ 335, 336
Società Edilizia Turistica Alberghiera Residenziale (SETAR) SpA v. Comune
di Quartu S. Elena ECLI:EU:C:2014:2467 (C-551/13)....................................... 139
Sociéte d’Importation Edouard LeClerc-Siplec v. TFI Publicité SA [1995] ECR
I 179 (C-412/93) ................................................................................................................ 375
Sopora v. Staatssecretaris van Financiën EU:C:2015:108 (C-512/13) ........... 429

Sotgiu v. Deutsche Bundespost [1974] ECR 153 (Case 152/73) .............. 420, 421
Spain v. United Kingdom [2006] ECR I 7917 (Case C-145/04) .................. 286, 287
SPUC v. Grogan [1989] IR 752 ............................................................................... 178, 197
SPUC v. Grogan [1991] I ECR 4685 (Case C-159/90) ................. 178, 198, 519, 523
Stadt Wuppertal v. Bauer C-569/16; ECLI:EU:C:2018:871 ................. 135, 143, 215
Stanley International Betting Ltd. and Stanleybet Malta Ltd. V. Ministero
dell'Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli C-
375/17; ECLI:EU:C:2018:1026 ................................................................................... 524
Star Fruit v. Commission [1989] ECR 291 (Case 247/87) .................................... 263
Stauder v. City of Ulm [1969] ECR 419 (Case 29/69) ............................................ 203
Steymann v. Staatssecretaris van Justitie [1988] ECR 6159 (Case 196/87) 406
Stork v. High Authority [1959] ECR 17 (Case 1/58) ................................................ 202
Sweden and API v. Commission [2010] ECR I 8533 (Cases C-514, 528 and
532/07P) .............................................................................................................................. 263
T & L Sugars and Sidul Açúcares v Commission, C-456/13 P, EU:C:2015:284
......................................................................................................................................... 316, 317
Tarola C-483/17; ECLI:EU:C:2019:309........................................................................ 412
Tate v. Minister for Social Welfare [1995] 1 IR 418 ................................................. 162
TDC, C-222/13, EU:C:2014:2265 ................................................................................... 238
Tesco-Global Áruházak Zrt v Adó- és Vámhivatal Fellebbviteli Igazgatósága
(Case C‑323/18, EU:C:2020:140) .............................................................................. 513
The Data Protection Commissioner & Anor. v. Facebook Ireland Ltd. & Anor.
[2018] IESC 38 .......................................................................................................... 253, 254
The Data Protection Commissioner v. Facebook Ireland Ltd. & Anor. [2017]
IEHC 545 ............................................................................................................................. 253
The Minister for Justice & Equality v. Vilkas [2018] IESC 69............................... 146
Thieffrey v. Conseil de l'ordre des Avocats a la Cour de Paris [1977] ECR 765
................................................................................................................................................. 497
Tjebbes and Others (C-221/17, EU:C:2019:189) ..................................................... 434
TopFit and Biffi (C-22/18, EU:C:2019:497) ................................................................. 405
Torfaen BC v. B & Q plc [1989] ECR 3851 (Case 145/88) ........................... 372, 384
Traghetti dei Mediterraneo v. Italy [2006] ECR I 5177 (Case C-173/03) ........ 163
Transocean Marine Paint v. Commission [1974] ECR 1063 (Case 17/74) .... 321
Transportes Urbanos y Servicios Generales v. Administración (Case C-
118/08).................................................................................................................................. 154
Trojani v. CPAS [2004] ECR 7375 (Case C-465/02) ...................................... 459, 460
TWD Textilwerke Deggendorf GmbH v. Germany [1994] ECR I 833 (Case C-
188/92).................................................................................................................................. 326
Ubeerseeing BV v. Nordic Construction Company Baumanagement GmbH
[2002] ECR I 9919 (Case C-208/00)......................................................................... 509
UH v. An tAire Talmhaíochta Bia agus Mara, Éire agus an tArd-Aighne (Case
C-64/20) ............................................................................................................................... 137
UK v. Council (Working Time Directive case) [1996] ECR I 5755 (Case C-
84/94) .................................................................................................................................... 122
UK v. Council (Working Time Directive) [1996] ECR I 5755 (Case C-84/94) 323
UK v. Council [1996] ECR I 5755 (Case C-84/94) ................................................... 320
Ullens de Schooten (C-268/15, EU:C:2016:874) ..................................................... 229
UNECTEF v. Heylens [1987] ECR 4097 (Case 222/86) ............................... 498, 499
Unibet (London) Ltd v. Justitiekananslerm [2008] ECR (C-432/05) .................. 205

Unilever Italia SpA v. Central Food SpA [2000] ECR I-7535 (Case C-443/98)
......................................................................................................................................... 148, 151
Unión de Pequenos Agricultores v. Council [2002] ECR I 6677 (Case C-50/00
P) ................................................................................................................... 307, 308, 327, 328
Union départementale des syndicats CGT de l'Aisne v SIDEF Conforama,
Société Arts et Meubles and Société Jima [1991] ECR 997 (Case C-312/89)
................................................................................................................................................. 372
Union Royale des Sociétés de Football Association v. Bosman [1995] ECR I
4921 (Case C-415/93) ........................................................................... 136, 392, 405, 417
Universitat Hamburg v. Hauptzollamt Hamburg Kehrweider [1983] ECR 2771
(Case 216/82) .................................................................................................................... 325
Vallianatos and Others v. Greece, CE:ECHR:2013:1107JUD002938109 ..... 442
Van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid
[1974] ECR 1299 (Case 33/74)........................................................................... 516, 529
Van Duyn v. Home Office [1974] ECR 1337 (Case 41/74) .................................. 391
Van Duyn v. Home Office [1974] ECR I-1337 (Case 41/74) .. 120, 134, 136,
137, 151, 423
Van Gend en Loos [1963] ECR 1 (Case 26/62) ............................................... 133, 277
Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR
I-1 (Case 26/62) ................................................................................................................ 333
Van Gennip BVBA Case C-137/17; ECLI:EU:C:2018:771 ................................... 362
Variola v. Amministrazione delle Finanze [1973] ECR 981 (Case 34/73) ...... 119
Vassallo, C-180/04, EU:C:2006:518 ............................................................................. 142
Vassen-Gobbels v. Beamtenfonds Mijnbedriff [1966] ECR 261 (Case 61/65)
......................................................................................................................................... 232, 233
Vatsouras v. Arbeitsgemeinschaft (ARGE) Nurnberg 900 [2009] ECR I 4585
(Joined Cases C-22/08 and 23/08) ................................................................... 412, 463
Verein gegen Unwesen in Handel und Gewerbe Köln v. Mars [1995] ECR I
1923 (C-470/93) ................................................................................................................ 375
Vereinigte Familiapress Zeitungsverlags-und Vertreibs GmbH v. Heinrich
Bauer Verlag [1997] ECR I 3689 (Case 368/95) ................................. 376, 384, 530
Viamar v. Elliniko Dimosio (ECLI:EU:C:2015:830) (Case C-402/14) ............... 346
Victoria Films A/S [1998] ECR I 7023 (Case C-134/97) ........................................ 235
Ville de Paris; Ville de Bruxelles and Ayuntamiento de Madrid v. European
Commission, Joined Cases T-339/16, T-352/16, and T-391/16;
ECLI:EU:T:2018:927 ....................................................................................................... 306
VK v. An Bord Pleanála (Case C-739/10) (ECLI:EU:C:2021:185) .................... 501
Vlassopoulou v. Ministerium fur Justiz [1991] ECR 2357 (Case 340/89) 498, 499
Vodafone Magyarország (C-75/18; EU:C:2020:139) .............................................. 513
Volker Graf v. Filmoser Maschinenbau GmbH [2000] ECR I 493 (Case C-
190/98).................................................................................................................................. 418
von Colson v. Land Nordrhein-Westfalen [1984] ECR I-1891 (Case 14/83) 143,
151, 184
Walrave and Koch v. Association Union Cycliste Internationale [1974] ECR
1405 (Case 36/74) .......................................................................................... 136, 391, 405
Walter Rau Lebensmittelwerk v. De Smet Pvba [1982] ECR 3961 (Case
261/81).................................................................................................................................. 370
Walter Rau Lebensmittelwerke v. Bundesanstalt fur Landwirtschaftliche
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Webb v. EMO Air Cargo (UK) Ltd. [1994] I ECR 300 (C-32/93)......................... 409
Weiss (Case C-493/17 EU:C:2018:1000; BVerfG, Judgment of the Second
Senate of 05 May 2020 - 2 BvR 859/15) ................................................ 189, 191, 192
Wells (R v. Secretary of State for Transport, Local Government and the
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Wightman & Ors. C-621/18, EU:C:2018:999 ....................................................... 76, 231
Wilhelm [1969] ECR 1 (Case 14/69) ............................................................................. 168
Wilson, C-506/04, EU:C:2006:587 ................................................................................. 237
Winner Wetten, C-409/06, EU:C:2010:503................................................................. 174
Wurttembergische Milchverwertung Sudmilch AG v. Salvatore Ugliola [1970]
ECR 363 (Case 15/69) ........................................................................................... 399, 415
X Holding, C-337/08, EU:C:2010:89 ............................................................................. 512
Z v. A Government Department and the Board of Management of a
Community School ECLI:EU:C:2014:159 (C-363/12) ........................................ 239
Zambrano v. Office national de l’emploi (ONEm) [2010] ECR I 1177 (Case C-
34/09) .................................................................................................................................... 436
Zambrano v. Office national de l’emploi (ONEm) [2011] ECR 1177 (Case C-
34/09) .................................................................................................................................... 249
Zenatti [1999] ECR I 7289 (Case C-67/98)................................................................. 523
Zhu and Chen v. Secretary of State for the Home Department [2004] ECR I
9925 (Case C-200/02) .................................................................. 431, 436, 456, 470, 472
Ziolkowski and Szeja v. Land Berlin [2011] ECR 14035 (Joined cases
C-424/10 and C-425/10) ................................................................................................ 452
Zuckerfabrik Schoppenstedt v. Council [1971] ECR 975 (Case 5/71) ............. 157

Introduction
1. Introduction to the Diploma in Legal Studies

The Diploma in Legal Studies is a course in substantive law intended to provide
a sound legal education to those who do not have a law degree. It is a useful
course in itself and also provides a foundation for going on to study on the
Barrister-at-Law Degree. In the course of the Diploma, you will study a range
of different areas of law. Diploma II involves Human Rights Law, Administrative
Law, the Law of Evidence, European Union Law, Company Law, Jurisprudence
and Equity and the Law of Trusts.
2. Course Aims and Objectives and Learning Outcomes

The aim of the course is to provide students with an understanding of the law
in this jurisdiction and to enable students to embark on the process of learning
the skills necessary to succeed as lawyers. The course aims to enable students
to demonstrate a knowledge and understanding of the law in the subjects
taught, to communicate it clearly in a variety of formats, and to apply their
knowledge in a range of situations. The course also aims to enable students to
develop critical legal reasoning skills and problem-solving skills, and to apply
these in a range of situations.
2.1 Learning Outcomes at Programme Level
On successful completion of the Diploma in Legal Studies a student should be

better able to:
o Recite key principles of the substantive law subjects covered in the

course of the Diploma;
o Apply key legal principles in a range of different factual scenarios;
o Identify relevant facts in problem scenarios and distinguish these from
irrelevant information;
o Identify, analyse and solve legal problems;
o Make a critical judgment of the merits of particular arguments;
o Recognise and rank items and issues in terms of relevance and
importance;
o Identify accurately issues requiring research in a problem scenario;
o Present and make a reasoned choice between alternative solutions;
o Act independently in planning and undertaking tasks in areas of law
studied;
o Undertake independent research in areas of law not previously studied;
o Discuss legal materials (including case law, legislation, textbooks and
legal articles) which are written in technical and complex language;
o Derive and apply solutions to legal problems from a knowledge of the
law;
o Explain exceptions to legal rules and apply these in appropriate
situations;
o Produce a high standard of work (both written and oral) which
demonstrates the appropriate level of knowledge and understanding of
the relevant law;
o Write clearly and coherently in an appropriate style;

o Communicate effectively, orally and in writing, with other law students
and with a range of audiences;
o Work effectively as an individual and in teams in multidisciplinary
settings;
o Use legal terminology proficiently;
o Produce a synthesis of relevant doctrinal and policy issues in relation to
a legal topic;
o Identify up to date legal information using a variety of sources;
o Use a wide range of source materials to research legal problems,
including Internet sources and case law;
o Devise and apply research strategies appropriate to different tasks; and
o Undertake further study, and in particular the course leading to the
Degree of Barrister-at-Law.
2.2 Learning Outcomes for EU Law
On completion of the course in EU Law, students should be better able to:
o Describe and explain a range of features of EU Law, with reference to

relevant sources including the Treaties and case law;
o Trace the history of European integration;
o Identify the Treaties and describe the changes brought about by each
of them;
o Describe and explain the structure of the European Union;
o Describe and explain key features of European integration;
o Describe and explain “differentiated integration” within the EU and give
examples of differentiated integration;
o Outline and contrast the composition, functions and powers of the
political institutions of the European Union;
o Identify the EU’s courts and outline the jurisdiction of each;
o Identify the sources of EU Law;
o Compare and contrast the different types of EU legal acts;
o Explain the limits on the powers of the institutions;
o Explain the different categories of competences;
o Explain the role of national Parliaments in subsidiarity;
o Describe and explain key concepts such as direct effect and
supremacy;
o Describe and explain the duty of consistent or harmonious interpretation
(indirect effect);
o Explain when state liability arises;
o Identify the content and origin of the general principles of EU Law, in
particular the protection of fundamental rights in EU Law;
o Describe and explain the legal status of the EU Charter of Fundamental
Rights;
o Describe and explain the “necessitated by the obligations of
membership test” and the impact of s 2 of the European Communities
Act 1972;
o Describe and explain infringement proceedings;
o Describe and explain preliminary references;
o Describe and explain judicial review proceedings;
o Explain quantitative restrictions and measures having equivalent effect;
o Describe and explain the “four freedoms” under EU law and explain the
exceptions to these rules;
o Describe and explain “EU Citizenship”;

o Apply Treaty law, legislation, and the jurisprudence of the Court of
Justice of the EU and the General Court to a range of factual and legal
problems; and
o Make cogent written and oral arguments based on EU Law.

Chapter 1
History of European Integration and the Treaties
1. Required Reading
University Press, 2020), chapters 1 and 2;
Cambridge University Press, 2019), chapter 1;
University Press, 2014), Introduction;
o Curtin, “The Constitutional Structure of the Union: A Europe of Bits and
Pieces” (1993) CMLRev 17.
2. Introduction
A study of European Union (EU) law requires an understanding of the history
and development of the EU and its predeccessor, the European Community
(EC). This chapter gives a brief overview of the history and development of
the EU. This will assist in understanding the EU’s legal powers both in terms
of how they are acquired and how they are exercised.
In the post-World War II era, there were a number of moves towards integration
of European States both in terms of political and economic integration. This
integration took place against a background of a worldwide effort for greater
cooperation.
The United Nations was established on October 24, 1945. The UN Charter was
ratified by five permanent members of the Security Council and the majority of
other signatories. Its purpose set out at Article 1 of UN Charter, namely, the
maintenance of international peace and security; the development of friendly
relations among nations based on respect for the principle of equal rights and
self-determination; the achievement of international co-operation in solving
international problems of an economic, social, cultural, or humanitarian
character, and promoting respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion; as well
as the harmonisation of actions of nations in the attainment of these common
ends.
Furthermore, the Council of Europe was founded on May 5, 1949 by the Treaty
of London. Ireland was one of ten signatories, alongside Belgium, Denmark,
France, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United
Kingdom.
This intergovernmental organisation sought to promote human

rights, democracy, and the rule of law; and to achieve greater unity between its
members for the purpose of safeguarding and realising the ideals and
principles which were their common heritage as well as to facilitate their
economic and social progress. Membership of the Council of Europe was open
to all European states who sought European integration, accepted the principle
of the rule of law and were able and willing to guarantee democracy,

fundamental human rights and freedoms. This organisation, however, is
separate and distinction from the European Economic Community which would
be formally established by the Treaty Rome some eight years later.
The European Economic Community (later, the European Community) was the
forerunner to the European Union. There were contrasting views as to the aims
of the Community, with some favouring an economic integrationist model, while
others favoured a more federal view. The initial steps can be characterised as
a compromise between the varying views.
Two common themes emerge as the European Economic Community evolved

to the European Union we know today:
i. Deepening of European integration from economic integration in

coal and steel to closer co-operation between Member States on a
wide range of policy areas, often requiring Member States to cede
sovereignty. This is often referred to as supranationalism.
ii. Widening of the EEC/EC/EU from the original six Member States
to the current twenty-seven Member States. Co-operation at
Member State to Member State level, thereby preserving national
sovereignty, is often referred to as intergovernmentalism.
3. The Schuman Plan

In May 1950 the French Foreign Minister, Robert Schuman, proposed the
pooling of Franco-German coal and steel. Other States would also be able to
participate. This plan was based on the work of Jean Monnet, a French official
and committed federalist. Coal and steel would be taken out of the hands of
the nation states and placed under the control of a supranational body. In May
1950, in what became known as the Schuman Declaration, Schuman put
forward his proposal. The following are relevant extracts of the Declaration: -
“[1] World peace cannot be safeguarded without the making of

creative efforts proportionate to the dangers which threaten it.
[3] … Europe will not be made all at once or according to a single

plan. It will be built through concrete achievements which create a de
facto solidarity. This coming together of the nations of Europe
requires the elimination of the age-old opposition of France and
Germany. Any action which must be taken in the first place must
involve these two countries. With this aim in view, the French
Government proposes that action be taken immediately on one limited
but decisive point. It proposes that Franco-German production of
coal and steel as a whole be placed under a common High
Authority, within the framework of an organisation open to the
participation of other countries of Europe.
[4] The pooling of coal and steel production should immediately provide
for the setting up of common foundations for economic development as
a first step in the federation of Europe, and will change the destinies
of those regions which have long been devoted to the manufacture

of munitions of war, of which they have been the most common
victims…”1 [Emphasis added.]
The aims of the Schuman plan, therefore, included the objective of integrating
what were regarded as the war making industries to secure peace in Europe
by preventing unilateral rearmament.
4. Stage One: The European Coal and Steel Community Treaty

(ECSC)
The Schuman Plan led to the establishment of the European Coal and Steel
Community (ECSC). Six nations (France, Germany, Italy, Belgium, the
Netherlands, and Luxembourg) signed the Treaty in Paris in 1951. The UK
was invited to participate but refused. The Community came into force in 19522
and expired fifty years later in 20023 at which time ECSC responsibilities and
activities were transferred to the European Communities. The preamble to the
ECSC Treaty sought to:
. . . substitute for age-old rivalries the merging of their essential

interests; to create, by establishing an economic community, the basis
for a broader and deeper community among the peoples long divided
by bloody conflicts; and to lay the foundations for institutions which will
give direction to a destiny henceforward shared …
The Treaty provided for a common market in coal and steel. It established four
institutions:
i. High Authority - comprised of nine independent appointees of the

six Member-State governments - precursor to the Commission
tasked with supervising common market in coal and steel. Main
executive institution with decision-making power and responsibility
for implementing the aims of the Treaty. The High Authority was
supranational in nature, capable of taking decisions by majority.4
Jean Monnet served as its first President.
ii. Assembly- composed of delegates of National Parliaments which
had advisory powers - precursor to the European Parliament;
iii. Council – participants were government Ministers from the Member
States;
iv. Court of Justice - 9 judges to settle disputes between States,
between institutions of the Community and between States and the
Institutions.
ECSC institutions had the power to abolish and prohibit internal trade barriers,
to harmonise external commercial policy and to impose levies on production to
raise finance.
1 Robert Schuman, Declaration of 9 May 1950, European Parliament, Selection of Texts

Concerning Institutional Matters of the Community for 1950-1982, 47.
2 The ECSC came into force on January 1, 1952.
3 The ECSC expired on July 23, 2002.
4 In some areas, the High Authority’s decisions were not final but subject to the control of the
Council which represented the Member States’ interests, and the influence of the High Authority
was reduced in these instances. Nevertheless, the ECSC had a stronger supranational element
than the later EEC Treaty.

The ECSC was significant given the transfer of sovereign power (legislative
and administrative) from the member States to an independent, autonomous
Community.
Craig and de Búrca note that “[t]he ECSC was a significant development, as
much because of what it symbolised as because of its actual achievements in
the organisation of the coal and steel market. It was clear from the outset that
for its architects and proponents, the Community was not merely about coal
and steel but represented a first step in the direction of the integration of
Europe.”5
Initially the ECSC was perceived as a success. However, the ECSC failed its
first major test. In 1958-9 cheap oil imports combined with a fall in energy
consumption led to an over capacity in coal production. The High Authority put
forward proposals for a Community-wide solution, but these were rejected by
the Member States in favour of their own protective measures. The High
Authority did not have the power to impose policies on the Member States,
particularly if those Member States were determined to do otherwise.
The ECSC did, however, serve as an impetus for further integration.
5. The Failed Pléven Plan (Failed European Defence Community

and Failed European Political Community)
In 1952 the French put forward a proposal for a European Defence
Community (EDC), as an alternative to allowing German rearmament within
NATO6, known as the Pléven Plan after the French Defence Minister, Réné
Pléven, who proposed it.
It involved the establishment of a common European army under political

institutions of a united Europe, broadly similar to the institutions of the ECSC.
The European Defence Treaty was signed, subject to ratification, in 1952 by
the six Member States of the ECSC with the UK once again refusing to
participate.
It was argued that a common European foreign policy was needed to support
the European Defence Community and, in 1953, a European Political
Community (EPC), was proposed to provide oversight of the EDC. Its aims
were federalist, proposing a common foreign policy, economic integration and
the protection of human rights. It involved the co-operation with other free
nations in ensuring the security of Member States against aggression, the co-
ordination of foreign policy, the promotion of the development of employment,
and the improvement of the standard of living in Member States by means in
particular of the establishment of a common market.
A change of government in France meant the EDC was not ratified by the
French Assembly. Ultimately, this led to the shelving of the plans for the EDC
and the EPC.
5 Craig and de Búrca, EU Law: Text, Cases and Materials (3rd ed., Oxford University Press,
2003), at 9.
6 Ultimately resolved by expanding the “Brussels Treaty 1948” which provided for the
collaboration of economic, social and cultural matters, and collective defence – later became
Western European Union (WEU) which allowed Germany to join NATO.

The failure of the EDC and the EPC demonstrated the difficulty of securing
integration on a federal basis. Thus, the six ECSC Member States pushed
ahead with plans of further integration but decided to confine this to the
economic sphere, agreeing a resolution at the Messina Conference, Sicily in
1955 to that effect.
Two objectives were agreed: the establishment of a European common market

and the development of atomic energy for peaceful purposes.
Following Messina, an intergovernmental committee was established, under

the chairmanship of the Belgian Foreign Minister, Henri-Paul Spaak.
The Spaak report of 1956 laid the basis for the European Economic
Community Treaty and the European Atomic Energy Community Treaty.
Two treaties, the Treaties of Rome were signed in 1957 by the six ECSC
States, one establishing the European Economic Community (EEC) and the
other the European Atomic Energy Community (EURATOM). Both treaties
entered into force on 1 January 1958 and were concluded for an unlimited
period.
6. The European Economic Community (EEC)

The EEC is a hybrid intergovernmental-supranational Community. The
Member States transferred sovereignty over certain limited areas to the
Community. Its initial aims were economic in nature.
The preamble expressed the objective of “... lay[ing] the foundations of an ever
closer union among the peoples of Europe”. [Emphasis added.]
Article 2 of the EEC Treaty set out the largely economic objectives of the EEC:
. . . establishing a common market and progressively approximating the

economic policies of Member States, to promote … a harmonious
development of economic activities, a continuous and balanced
expansion, an increase in stability, an accelerated raising of the
standard of living and closer relations between the states belonging to
it.
Key innovations under the EEC:
o Creation of economic conditions similar to those of a nation state.

o Establishment of the common market over a transitional period.
o Trade barriers to be abolished and common external tariff established.
o Removal of all tariffs and quantitative restrictions on internal trade
making the Community a free trade area.
o Common external tariff would make the Community a customs union
and serve as a basis for a common commercial policy.
o Common policies in agriculture and transport, free movement of goods,
capital, services, freedom of establishment and free movement of
workers were established.
o Restrictions on the “four freedoms” were prohibited by the Treaty.

o Prohibitions would be placed on practices having their effect the
distortion or prevention of competition between Member States.
7. The EEC Institutional Structure
Parliamentary
Assembly (later
Council Commission Council of Ministers
European
Parliament)*
European Court of *Parliamentary Assembly

Justice (ECJ)* and ECJ initially shared with
ECSC
EEC institutions after the Treaties of Rome
The EEC Treaty was vaguer than the ECSC and is often described as a
framework treaty. The institutions had to play a more creative role in policy
making. The EEC institutions were as follows: -
• The Council, representing the Member States’ interests, was

afforded more power under the EEC than under the ECSC Treaty.
• The Commission was afforded less power than the “Higher
Authority under the ECSC, with its legislative function, in particular,
curtailed. However, it was vested with certain legislative, decision-
making, negotiation, and supervisory functions as a watchdog to
ensure that the Member States and other institutions complied with
the Treaty and secondary legislation. While Commissioners were
appointed by Member State governments, they were required to act
independently. The Commission, therefore, was supranational in
nature.
• The Council of Ministers had primary decision-making power and
made the final decision in almost all areas of EEC activity. The
voting procedure in the Council varied according to the nature of the
issue and the Treaty provided for voting by unanimity, simple
majority voting and a type of weighted voting system known as
qualified majority voting (QMV). At the outset, it voted
predominantly by unanimity but there was provision for transitional
move to (QMV).
• The Assembly, which later evolved into the European Parliament,
was composed of national parliamentarians and had responsibility
for holding the Commission to account and had a right to be
consulted about most proposed legislation. It was envisaged that
the members would be directly elected. The Assembly had few

powers under the original EEC Treaty, but this would change with
subsequent Treaty revisions.
• The Court of Justice was comprised of Judges appointed from the
Member States. Its function was to monitor compliance with the
Treaty. Both the Parliamentary Assembly and the Court of Justice
were initially shared with the ECSC but there was a separate
Council of Ministers and Commission.
The EEC Treaty created procedures whereby legislation could be adopted in

pursuance of activities by the three political institutions (Commission, Council
and Assembly).
The EEC institutions were not traditional international institutions but rather
represented a new legal order. Member States transferred sovereignty in
limited field and could be sanctioned for failure to comply with Community
norms.
In 1958, however, Charles de Gaulle became President of France and favoured

a more intergovernmental approach to integration. While in the 1950s Britain
had chosen not to participate in the Communities, in 1960 Britain, Norway,
Sweden, Austria, Switzerland, Denmark and Portugal set up the European Free
Trade Area (EFTA).
Following a change of policy, Britain would apply to join the Communities in

1961. However, on two occasions—in 1963 and 1967—de Gaulle vetoed UK
accession, arguing that Britain’s place was in the Commonwealth.
8. Stagnation in the 1960s-1980s
8.1 The Luxembourg Accords
The Commission put forward a series of proposals in 1965, for increased

powers for the Assembly, a system of own resources so that the Community
would be financially independent and a series of financial regulations to allow
the Common Agricultural Policy to make progress.
De Gaulle regarded the proposals as overly federalist. Negotiations broke

down and the French walked out of the Council in mid-1965. This was known
as the “empty chair policy” as the French did not participate in the Community
again until a compromise reached January 1966.
The resolution of the crisis, known as the “Luxembourg Accords” was really an
agreement to disagree. France declared a belief that a veto over Community
policy-making existed where a state felt its vital national interests were at stake
and asserted that in such circumstances, even where there was provision for
majority decision-making, discussion must continue until there was unanimity.
The other five Member States declared that Council would endeavour to reach
a solution, acceptable to all, within a reasonable time.
The Accords lacked formal legal status, but they had a profound and paralysing
effect on the functioning of the Community. They led to a period of stagnation
in the process of European integration. Each Member State effectively had a
veto and, although the policy came about as a result of the French actions, the
veto was exercised by each of the States. Unanimity was maintained as the

normal voting mechanism in the Council. There was no definition of vital
national interests. The Accords suppressed the legislative process for a period
of some twenty years. The Council’s role was restricted to intergovernmental
co-operation and was dependent on unanimous support for action. Power
shifted to the Council, and, therefore to the Member States, away from the
Commission and consequently also away from the Assembly, which exercised
a supervisory role over the Commission. There was also an increased role
played by the Committee of Permanent Representatives (COREPER).
The inability to make decisions quickly was exacerbated by the accession of

new Member States.
8.2 The Merger Treaty 1965
The Merger Treaty simplified the institutional system of the Communities. Its
aim was to rationalise the administration of the three communities (the ECSC,
the EEC and Euratom).
The Treaty established a single Council and a single Commission of the

European Communities.7 As a result of the Convention on certain institutions
common to the European Communities8, adopted at the same time as the EEC
and Euratom Treaties, there had always been only one Court of Justice and
one Assembly.
Both the Convention and the Merger Treaty were repealed by the Treaty of
Amsterdam, but the essential elements were retained.
It should be noted, however, that the Treaty did not merge the three
Communities.
9. First Enlargement (Widening)—1973

Ireland, the UK, and Denmark joined the EEC in 1973. Norway was scheduled
to join at this time but in a referendum the majority of the Norwegian electorate
rejected membership.
10. After the Luxembourg Accords
10.1 Direct Elections
On the supranational side, it was agreed in 1976 that there would be direct
elections to the Assembly9 and the first elections were held in 1979.
10.2 The Budgetary Treaties of 1970 and 1975
In 1969, agreement was reached on funding from the Community’s own

resources, rather than from Member State contributions and on the expansion
7 Prior to its entry into force, in 1967, there had been three Councils and three Commissions,
one for each of the three Communities.
8 Convention on Certain Institutions Common to the European Communities (25 March 1957).
9 Decision 76/87/EEC OJ 1976 L278/1.

of the Parliament’s role in the budgetary process. The Own Resources Decision
of 1970 stipulated the sources of Community Revenue.10 The First Budgetary
Treaty of 1970 increased the decision-making authority of the Parliament and
there were further increases in the Parliament’s budgetary role with the Second
Budgetary Treaty in 1975. This latter Treaty created the Court of Auditors to
supervise the collection and expenditure of Community resources.
10.3 Judicial Activism of the Court of Justice
Many commentators have also emphasised the role of the Court of Justice
during this period, most notably the development of the doctrines of direct effect
and supremacy into European Community law emphasising the supranational
nature of the Communities. This will be examined in greater detail in chapters
4 and 5.
10.4 Cooperation in Foreign Policy
On the intergovernmental side there was co-operation in foreign policy from

1970, based on a report which recommended meetings of the foreign Ministers
of the Member States. This co-operation continued and became known as
European Political Co-operation but did not have a Treaty basis at this time.
In 1974, the European Council was established. It comprised the Heads of

Government of the Member States and held biannual meetings, referred to as
Summits, together with the President of the Commission. The European
Council was outside the institutional structures established by the Treaties and
should not be confused with the Council of Ministers. The European Council
evidenced a further move away from supranationalism.
11. Further Enlargements (1981 and 1986)

In 1981 Greece joined, and in 1986 Spain and Portugal joined.
12. First Reform of the Founding Treaties: the Single European

Act (SEA)
In 1986 the first reform of the Community Treaties took place, namely, the
Single European Act (SEA). It contained institutional and substantive
amendments together with the addition of new areas of competence. It was
signed in 1986 and came into force in 1987. In Ireland, the SEA was the subject
of a constitutional challenge in Crotty v. An Taoiseach [1987] IR 713, which will
be examined in greater detail in chapter 4.
Key features of the SEA include:
i. Preamble—the Heads of State approved progressing towards

Economic and Monetary Union (EMU).
ii. Foreign Policy—while for many years the Member States had
been co-ordinating their foreign policy through European Political
Co-operation (EPC) outside the Community structure, this system
10 Decision 70/243/EEC, OJ English Spec. Ed. 1970(1) 224.

was placed on a Treaty footing in the SEA and the European
Council was formally recognised. EPC decisions would be taken by
consensus but would not constitute Community law, and therefore
the European Court of Justice would have no jurisdiction in respect
of the fulfilment of EPC objectives. Thus, while the SEA brought the
EPC and the Community together in one text, the two types of
integration were kept separate. In EPC, the power was retained by
the Member States, thus remaining a form of intergovernmental co-
operation.11
iii. Treaty Reform—the SEA amended the ECSC, EEC and Euratom
Treaties.
iv. Institutional Reforms—the SEA provided for an increase in the

powers of the European Parliament. A new legislative procedure,
the “co-operation procedure”12, was introduced, giving the
European Parliament real power in the legislative process for the
first time13.
In addition, while the Assembly had called itself the European

Parliament for some time, its name was only formally changed by
the SEA. The European Parliament was also given a veto over the
accession of new Member States under the SEA.
The SEA provided for the establishment of the Court of First

Instance (CFI) to assist the Court of Justice which was suffering
considerable delays. The CFI was officially established in 1988.
Comitology (the Committee mechanism through which certain
Commission powers are controlled) was given a formal legal
basis.14
v. Internal Market—The SEA evidenced a commitment by the

Member States to achieve the internal market: “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”.
It set out a timetable for its achievement by “progressively

establishing the internal market over a period expiring on 31
December 1992”.15
Initially it had been anticipated that the internal market would be

achieved by 1970 which was overly ambitious. In 1985 the
Commission identified 279 areas in which measures were
necessary to achieve the internal market.
11 Later, Title III of the SEA—governing EPC outside the EC framework—would be repealed
and replaced by the Treaty on European Union 1992, under which EPC became the Common
Foreign and Security policy.
12 In ex Article 252 EC.
13 The co-operation procedure was a significant enhancement of the power of the European
Parliament, but the procedure itself is now defunct.

14 Ex Article 202 EC.

vi. Voting Procedures—the SEA expanded the use of Qualified
Majority Voting (QMV) in the Council over some areas where
previously unanimity had been required. This meant that a majority
of Member States could pass legislation and sought to overcome
the previous problems of political stagnation. Significantly, a new
Treaty article was added which provided for QMV when adopting
measures to achieve the internal market measures. The move to
QMV is significant and the SEA was only the first step in a gradual
move to more extensive use of QMV.
vii. Competences (powers) of the EC—the SEA added new

competences of the European Communities including co-operation
in economic and monetary union, economic and social cohesion,
research and technological development, the environment and
increased competence as regards social policy.
While some viewed the SEA changes as modest, the significance of the Treaty
should not be underestimated. It showed that the initial Treaties could be
amended, and it gave rise to a further integrationist momentum. While the
Luxembourg compromise had been concluded outside the Community
framework, in the wake of the SEA a culture developed whereby Member
States were not as tolerant of attempts to invoke the compromise.
Foster considers that the “true success” of the SEA “lay in its longer term
influence in reinvigorating integration.”16
13. Intergovernmental conferences in the 1990s

In 1985 and 1990 two agreements were signed at Schengen in Luxembourg
between all the Member States except Ireland and the UK. These agreements
provided for the abolition of frontier checks and a common external frontier, and
the creation of the so-called Schengen area.
Furthermore, two IGCs about Economic and Monetary Union and Political
Union were held in the early 1990s. These led to proposals for a single
amending Treaty.
14. Further Reform: Treaty on European Union (TEU) (The

Maastricht Treaty)
The Treaty on European Union was signed in 1992, As well as amending the
existing three Treaties, it added a fourth treaty, the Treaty on European Union,
and created a new political entity “the European Union”. Its entry into force was
delayed, however, until November 1993 due to a number of factors:
• It was rejected in a referendum in Denmark but after several

concessions were made to Denmark, it passed a second
referendum there;
16 Foster on EU Law (4th ed., Oxford University Press, 2013), at 29.

• The Treaty was also challenged before the German Constitutional
Court in Brunner v. The European Union Treaty [1994] 1 CMLR 57.
The European Union is wider than the European Economic Community, even
though the original Community structure is incorporated into the first of the
pillars, discussed below. The EEC was renamed the European Community,
given that that its spheres of activity now extended beyond economic policy.
The TEU was a major step in European integration, providing a commitment to

and a timetable for the achievement of monetary union. A key institutional
feature of the TEU was the creation of a three-pillar structure:
Pillar 1—The EEC was renamed the EC and was supranational in nature, i.e.,
subject to ECJ jurisdiction. This pillar incorporates the entire body of
Community law adopted under the Treaty of Rome and the Single European
Act.
A new Pillar 2 was added—Common Foreign and Security Policy (CFSP).
Pillar 3 was also an innovation under Maastricht—Justice and Home Affairs

(JHA).
Decision-making in the two new pillars was intergovernmental in nature and

power was retained by the Member States. These were therefore not subject
to the jurisdiction of the ECJ.
The TEU contains a Preamble, followed by seven Titles.
The Preamble provides:
. . . . Resolved to continue the process of creating an ever closer union

among the peoples of Europe, in which decisions are taken as closely
as possible to the citizen in accordance with the principle of subsidiarity.

The Titles are as follows:
Title I—Common Provisions sets out basic aims and objectives of the EU,
provides for a common institutional framework and for the European Council to
be given a co-ordinating role for all three pillars; enshrines respect for national
identities of Member States and fundamental rights.
Titles II–IV—Amendments to EEC, ECSC, Euratom provide for:
• Increased powers for the European Paliament with the introduction

of the co-decision legislative procedure17 (increased power for
European Paliament in legislative process including veto), the
extension of the co-operation and assent procedures, and the
introduction of European Paliament powers to block the
Commission and request Commission initiation of legislation.
• An increase in Commission’s term from four to five years.
• ECJ given power to impose fines on MS (N.B.)
• The placing of the Court of Auditors on an institutional footing;
• Provision for a European System of Central Banks, European
Central Bank, Parliamentary Ombudsman and establishment of
Committee of the Regions.
• The setting of a timetable for EMU with the introduction of a single
currency starting January 1, 1999
• Principle of subsidiarity established
• Concept of EU citizenship introduced
• Expansion/addition of competences of the EU to areas such as
development co-operation, public health, culture, consumer
protection, trans-European networks.
Title V of the TEU established Common Foreign and Security Policy as the
second pillar of the European Union, on an intergovernmental basis. It
encompassed:
• Political aspects of EU external relations (diplomatic relation, election

monitoring, etc) (i.e. trade not included here).
• Consolidation of democracy, rule of law, human rights.
• CFSP was to “include all questions relating to the security of the Union,
including the progressive framing of a common defence policy, which
might lead to a common defence should, the European Council so
decide”. The provision contained a safeguard for neutral States.
• European Council tasked with defining principles of and general
guidelines and common strategies.
• Council of Ministers was to define “common positions” based on the
agreement of Member States and Member States had to align their
national policies i.e.committing Member States to particular course of
action (mainly QMV save where one Member state objected for
“important and stated reasons of national policy”) or to adopt “joint
actions” where necessary.
• Commission to be fully associated with work carried out in CFSP and
with the Presidency in representing EU. European Parliament to be
consulted and kept fully informed.
• Political Committee established to assist the Council.
17 In ex Article 251 EC.

Title VI of the TEU established Justice and Home Affairs (JHA) as the third pillar
of the European Union.
It provided for co-operation on law enforcement and maintenance of public

order: asylum policy, external border control, immigration, drug trafficking,
fraud, judicial co-operation on criminal and civil matters, customs co-operation,
counter-terrorism. Explicit reference is made to a European Police Office
(Europol).
The Council of Ministers was tasked with drawing up “joint positions” and
agreements based on initiatives of the Member States or the Commission.
Unanimous voting was the norm except on matters of procedure or when
implementing joint actions or agreed conventions. A Committee was
established to assist the Council. The European Council did not have the same
role under JHA as it had under CFSP.
Title VII, the Final Provisions, provided for a restricted role for the Court of
Justice, which was afforded no role in respect of CFSP and a limited role in
respect of JHA.
Links were established between the TEU and the other pillars with provision for
one procedure for acceding to the European Union and one procedure for
amending the Treaties. The Treaty provided for an IGC to take place in 1996,
implying some level of dissatisfaction with the text.
In addition, a series of Protocols were attached to the Treaties:
• An Irish abortion protocol.

• A Danish EMU opt-out.
• A UK potential opt-out to third stage of EMU.
Other protocols, such as the Protocol on the Stature of the European System
of Central Banks, developed or explained the Treaty. In addition, there was a
protocol on social policy in which eleven of the twelve Member States (all,
except the UK) participated and which allowed for the EC’s institutional
machinery to be used for social policy to be financed by the participating
Member States.
Under CFSP and JHA decision-making was in the hands of the Council and
was governed by the procedures set out in the TEU.
The TEU did not afford legal personality to the EU. Actions were ascribable
either to the Communities or to the Member States.
The TEU was criticised because of what became known as its “variable
geometry”, i.e., differing levels of integration provided for in the mix of the
Community and Union policies; the many opt-outs and the differentiated levels
of integration.
The Union was much more structurally complex than the previous Community
system.

Summarising these concerns Curtin observed:
The result of the Maastricht summit is an umbrella union threatening

to lead to constitutional chaos; the potential victims are the unity and
concomitant power of a legal system painstakingly constructed over the
course of some thirty odd years … It must be said that at the heart of all
this fragmentation and chaos, the unique sui generis nature of the EC,
its true world-historical significance is being destroyed.18
Notwithstanding criticisms of the increased complexity and differentiated

integration, the trend since Maastricht has been for further differentiated
integration and fragmentation of the legal system.
15. 1995 Enlargement

There was a further enlargement or widening of the Community in 1995 with
the accession of Austria, Finland, and Sweden, bringing the number of Member
States to 15. The Norwegian electorate again rejected membership.
16. Treaty of Amsterdam 1997

The Intergovernmental Conference (IGC) in 1996 led to the Treaty of
Amsterdam, which was signed in 1997 and came into effect on May 1, 1999.
The Amsterdam Treaty was concerned with consolidation rather than extending
EC powers and about the enhancing of effectiveness rather than expanding
competence.
Principal changes
• Three pillar structure maintained although the content of the pillars

was modified. Aspects of the former Justice and Home Affairs pillar
were moved into the EC Pillar (Pillar 1),
• Provisions on “closer co-operation” were introduced. The rationale
was to allow a number of Member States to integrate more deeply
within the EU institutional framework but without the non-
participating States being bound by the rules, i.e. a form of
differentiated integration.
• Re-numbering - provisions of the EC Treaty were numbered and the
provisions of the TEU were changed from letters to numbers to get
rid of redundant articles of the EC Treaty and to make the Treaties
more “user friendly”. The substance of many of these provisions
remained the same.
• “Vanishing Treaty”, i.e., all its provisions are absorbed into the
(amended) existing Treaties and it does not exist as an independent
Treaty.
18Curtin, “The Constitutional Structure of the Union: A Europe of Bits and Pieces” (1993)
CMLRev 17, at 67.

Key Reforms
Part I—Substantive Amendments.
Part II—Simplification – deleted obsolete provisions, adapted others.
Part III—The General & Final Provision - inter alia, with renumbering the TEU
and EC Treaty.
Other relevant additions included Protocols on Schengen19, Subsidiarity, and

National Parliaments.
In terms of substantive amendments, measures included:
• New tasks added to ex Article 2 EC: equality between men and

women, anti-discrimination, access to documents principle, data
protection, employment title, closer co-operation between MS
• Enhanced protection of: competitiveness, environment, public health
• Former JHA tasks subsumed into Pillar 1 Title IV EC dealt with free
movement of persons and now included asylum, immigration, visas,
judicial co-operation in civil matters. For an initial period, the possibility
of a preliminary reference from a national court was limited to national
courts from which there is no judicial remedy. Also, the CoJ was
afforded no jurisdiction over certain free movement provisions.
• New competences (powers) added and existing ones were
expanded: new Title on employment added which provided for “soft
law” type measures and served as a prototype for new “Open Method
of Coordination”. As the UK no longer wished to maintain the social
policy opt-out an amended version was incorporated into the EC Treaty.
The title on public health was replaced and enhanced. A provision was
added which stated that the Council may authorise “closer cooperation
between Member States”20.
• European Parliament: “consultation” legislative procedure under
which the EP had the least input under the EC Treaty was applied, at
least for an initial five-year period in most areas of decision-making and
in certain emergency situations; there was no requirement to even
consult the EP.
• TEU Common Provisions amended: principle of openness in
decision-making, attainment of Area of Freedom, Security and Justice
(AFSJ); declaration of respect for human rights, democracy and rule of
law. Respect for these principles became a condition of membership of
the EU. It was declared that the EU shall protect fundamental rights as
protected by the European Convention on Human Rights and in the
national constitutions of the Member States, and this provision was
rendered justiciable. A power was established to suspend a Member
State’s rights in the event of a serious and persistent breach of the
principles of human rights, democracy and the rule of law.
19 Under a further Protocol, Ireland and the UK opted out of Schengen. The UK did not want to
participate and Ireland wished to maintain the common travel area between Ireland and the UK.
Both countries could opt in at a later date if they chose to do so. Ireland retains such “opt in”
rights. Denmark also has a more limited opt out by way of a further protocol. Schengen is an
example of differentiated integration.
20 This provision was amended by the Nice Treaty without it ever having been used in its Treaty
of Amsterdam incarnation.

• CFSP: Commission afforded the possibility of submitting proposals;
Secretary General of Council nominated to act as “High Representative”
to CFSP to assist the Presidency of the Council. Council could conclude
international agreements on CFSP matters. Nonetheless, the Council
Presidency (rotated every six months between the Member States)
would remain the primary representative of the EU. The Council was
conferred with the power to conclude international agreements
whenever necessary in the field of implementing CFSP. The ToA
defined the CFSP instruments of “common strategies”, “joint actions”
and “common positions”. There were changes too to the voting
procedure. While unanimity would remain the norm, provision was
made for abstention. In addition, there was some possibility of QMV
with a Luxembourg Accords type provision allowing any Member State
to invoke a vital national interest.
• Pillar III: renamed Police and Judicial Co-operation in Criminal Matters
(PJCC); lost some of functions to Pillar 1 and remaining competences
expanded and subjected to institutional control. The overall aim of this
pillar was to provide citizens with a high level of safety within an “area
of freedom, security and justice” by developing common action on
police co-operation in criminal matters, judicial co-operation in criminal
matters and the prevention and combating of racism and xenophobia.
These aims were to be addressed through closer cooperation between
the relevant authorities of the Member States and through
approximation of certain criminal laws in the Member States.
On the institutional side, changes included:
• Amendment and expansion of the “co-decision” legislative

procedure, consolidating the role of the EP.
• EP being given a consultative role in decision-making, except for
common positions.
• Co-operation procedure was almost eliminated apart from the EMU
provisions.
• Further power was attributed to the European Parliament by the
amendment of the procedure to appoint the Commission President,
which now required the assent of the Parliament and there was
increased provision for QMV in the Council.
• CoJ afforded some jurisdiction over Pillar III. Dynamic of
communaterisation is evident in the changes to the third pillar.
Missed Opportunity?
The Amsterdam Treaty left the quest for institutional reform (to prepare for
enlargement) unfulfilled, thus necessitating further reform in the guise of the
Nice Treaty within a relatively short period.
By the early 1990s, twelve former Communist States of Central and Eastern
Europe (CEE) had applied for membership. In 1993 in Copenhagen the EU
agreed that the CEE States could become members of the EU once able to
satisfy the obligations of membership. The requirements were stability of
institutions guaranteeing democracy, the rule of law, human rights and respect
for and protection of minorities, the existence of a functioning market economy
as well as the capacity to cope with competitive pressures and market forces
within the EU, the ability to assume the obligations of membership including
adherence to the aims of political, economic and monetary union and in a

criterion added in Madrid in 1994, to have the conditions for their integration
through the adjustment of their administrative structures, so that EC legislation
transposed into national legislation is implemented effectively through
appropriate and administrative structures.
Thus, enlargement on a large scale was already envisaged at the time of the
negotiation of the ToA. This would necessarily involve institutional reform.
However, the necessary reforms were not agreed in the Amsterdam Treaty and
provision was made for a further IGC to deal with institutional reform. The issue
of institutional reform proved too decisive and was postponed. A Protocol
provided for an IGC to be convened at least one year prior to membership of
the EU reaching twenty.
The Commission resigned en masse in March 1999 after an EP-appointed

Committee’s investigation into the Commission’s management of the Union’s
financial resources. Reform of the Treaties would also have to take account of
dissatisfaction with the EU institutions.
17. The Euro

The TEU provided a timetable for Economic and Monetary Union (EMU)
including a single currency. The TEU set out convergence criteria which served
as a pre-condition for a state to adopt the single currency. In 1998, a decision
was taken that a number of applicant states had met the criteria. On January
1, 1999, the exchange rates of the participating states were fixed and the euro
became a currency. The euro currency banknotes and coins came into
circulation in 2002. Currently, nineteen of the twenty-seven European Union
Member States use the euro. The Treaties provide for the adoption of
measures specific to those Member States whose currency is the euro. Only
members of the Council representing Member States whose currency is the
euro participate in the voting.21
Denmark has opted out of the euro by way of Protocols, but it is open to them
to join. The UK had a similar opt-out during the course of its EU membership.
The balance of the Member States, who have not negotiated an opt-out of the
euro, are required to join the single currency when they meet the criteria. They
are known as “Member States with a derogation”. The vast majority of States
which have not yet met the criteria comprise Member States which joined in
recent enlargements (2004, 2007 and 2013) but also include Sweden.
The euro provides another example of differentiated integration.
18. The Charter of Fundamental Rights of the EU

In 1999, the European Council launched another initiative establishing a
Convention to draft a Charter of Fundamental Rights of the EU. The Convention
operated in an open manner. The Charter was solemnly proclaimed by the
Commission, the Parliament, and the Council but the issues of whether it
should be incorporated into the Treaties and its legal status were left over to
the 2004 IGC, after Nice.
21 Article 136 TFEU.

19. The Treaty of Nice
The Treaty was signed in December 2000 and came into force on 1 February
2003, after a second Irish referendum.
The Treaty consisted of two parts; (i) amendments to the EC Treaty and the
TEU and (ii) transitional and final provisions.
In addition, there were four protocols: on enlargement, on the Statute of the

Court of Justice, on the financial consequences of the expiry of the ECSC and
on the treaty provision concerning transitional provisions of Title IV on the free
movement of persons.
There were twenty-four declarations, including a Declaration on Enlargement

and a Declaration on the Future of Europe.
The key feature of the Nice Treaty was that it achieved the institutional reform
necessary for enlargement. The main changes included:
• Re-weighting of the votes in the Council,

• A reduction in the number of Commissioners,
• Extension of Qualified Majority Voting (QMV) in the Council,
• Reform of the other institutions including the Court of Justice
• Court of Justice was given jurisdiction over the procedural
measures.
• Replacement of the provisions on closer co-operation with
enhanced co-operation.
In Pillar I, the EC Pillar, institutional amendments included:
• Reweighting Council votes, with “triple majority” for certain matters.

• Detailed procedures for sanctions on Member States for breach of
human rights, democracy, rule of law.
• Commission – question of one Commissioner per Member State when
the EU reached 27 (Lisbon II referendum issue subsequently);
increased powers for President of the Commission to reassign
portfolios, to elect Vice Presidents, to force a resignation from his
College. Other members of Commission appointed by Council of
Ministers by QMV, in consultation with President. Appointment of entire
Commission to be confirmed by Council by QMV after EP approval
(reaction to resignation of Santer Commission in 1999)
• Council – to elect its President at Heads of State level by QMV with EP
approval still necessary. QMV extended generally.
• EP – seats raised from 700 (Amsterdam) to 732, leading to reduction in
Member State allocation as EU expanded. Co-decision extended again
to enhance EP power in legislative process.
• ECJ reform giving providing for a third tier of courts, judicial panels, and
for increased powers for the Court of First Instance as well as appellate
jurisdiction
• “Closer co-operation” becomes “enhanced co-operation”
• New Title on economic, financial and technical co-operation with third
countries was adopted.
• Pillar 2 – Changes to the security and defence policy, with many
provisions of WEU (Western European Union) repealed, more QMV.in

respect of the appointment of special representatives and the
conclusion of certain international agreements.
Pillar 3 – QMV extended to certain international agreements. Treaty
foundation given to Eurojust. Enhanced co-operation provisions altered
considerably, with the role of the Commission being increased and the
Parliament afforded a consultative role. In addition, the Luxembourg
Accords-type protection was removed and replaced with a Member
State having the ability to refer a matter to the European Council.
• Protocol on the ECSC provided that the assets and liabilities of the
ECSC were to be transferred to the EC.
• Declaration on the Future of Europe – called for deeper and wider
debate in area of competences, fundamental right. Treaty simplification
and role of national parliaments.
20. Enlargements in 2004 and 2007

In 2004, 10 States acceded to the European Union: the Czech Republic,
Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia, Slovenia, and
Poland. The Treaty of Accession in 2003 contained transitional provisions to
ensure the smooth assimilation of the new Member States and provided for
institutional amendments to accommodate them.
In 2007, Bulgaria and Romania joined the EU, bringing the total number of
Member States to 27. These States were required to meet the Copenhagen
criteria and to adopt the entire Community acquis. Again, there was a Treaty of
Accession in 2005 providing for adaptations to accommodate the two most
recent Member States.
21. The Future of Europe Debate

The Laeken European Council issued the Laeken Declaration and established
a Convention on the Future of Europe (CFE) modelled on the Convention which
had drawn up the Charter of Fundamental Right. This Convention produced a
draft Treaty establishing a Constitution for Europe which formed the basis of
an IGC under the Italian Presidency in 2003. Agreement on the text was not
reached at that time and the IGC continued under the Irish Presidency. A text
was agreed and signed on October 29, 2004.
The Treaty establishing a Constitution for Europe could only come into force if
ratified by all Member States according with the constitutional requirements of
each State. Fourteen States had ratified the Treaty, but during 2005 there were
“No” votes in referenda in the Netherlands and France and the ratification
process came to a halt. In June 2005, the European Council decided that there
would be “pause and reflection”.
This draft Treaty would have repealed the existing EU and replaced it with a
newly constituted European Union, which was to be afforded a single legal
personality.
A single text would also have replaced the existing Treaties.

There was to be a generalisation of the Ordinary Legislative Procedure
(formerly known as co-decision) a reduction in the number of legal instruments
to six, more specific delimitation of competences, the principle of supremacy
was to be included in a protocol, the Charter of Fundamental Rights was to
become binding, there would be provision for accession of the EU to the ECHR
and there was to be an increased role for the national parliaments.
There was to be an EU Foreign Affairs Minister and a new permanent post of

President of the European Council.
The number of Commissioners was to be reduced so that two thirds of States

had Commissioners at any one time rotated on the basis of equality between
States.
There was to be a novel passerelle position, a new definition of QMV and the
possibility of a petition by citizens of the EU. There were provisions on common
defence (in which Ireland was not to participate), an expansion of
peacekeeping, a solidarity clause and a withdrawal from the EU clause.
22. The Lisbon Treaty
22.1 Background Negotiations
In 2006, the European Council asked Germany, who would hold the Council
Presidency in the first half of 2007, to draft a report on how to move forward.
The European Council in June 2007 agreed to convene an Inter-Governmental

Conference to draft a “Reform Treaty” to amend the EC Treaty and the TEU,
mindful that delicate balance had to be struck in order to appear to respect the
referendum results in France and the Netherlands.
The Lisbon Treaty was signed by the Member States on December 13, 2007
but did not immediately come into effect as it was rejected by a referendum in
Ireland on June 12, 2008. Thus the Nice Treaty remained operative pending a
further referendum in Ireland.
Following the “no” vote in the first Irish Lisbon referendum, a series of issues
emerged as concerns for Irish voters.
In December 2008, it was agreed that when the Lisbon Treaty entered into
force each Member State would retain the right to nominate a member of the
European Commission.
Furthermore, the European Council in June 2009 agreed a series of legal

guarantees to address issues including competence in taxation, Ireland’s
neutrality policy, no European army and/or conscription and that the Irish
Constitutional protections of life, family, and education were not affected. Also
a Solemn Declaration on workers’ rights was agreed.
A Decision of the 27 EU Heads of State or Government agreed that the legal

guarantees would constitute an international agreement which would take
effect on the date the Lisbon Treaty entered into force, would be legally binding
under international law, and would be registered with the United Nations. If the

Lisbon Treaty was ratified by all 27 States and entered into force, the Decision
would be annexed to the Treaties via Protocol22 at the time of the conclusion of
the next accession Treaty for a new Member State.
A second Irish referendum took place on October 2, 2009 and the Lisbon Treaty
was approved. Subsequently, the Czech government insisted on the same
guarantees given to Poland and the UK in respect of the EU Charter of
Fundamental Rights.
22.2 Structure of the Lisbon Treaty
The text of the “Lisbon Treaty” comprises seven Articles followed by a series of
protocols and declarations.
Article 1 amends the TEU and Article 2 amends the EC Treaty.
Article 3 states that the Lisbon Treaty is concluded for an unlimited period.
Article 4 annexes the Protocols.
Article 5 provides for re-numbering of the EU Treaty.
Article 6 provides that each Member States shall ratify the Treaty in accordance
with its constitutional requirements.
Article 7 provides for the validity of the Treaty in all Treaty languages.
Protocols on the Area of Freedom, Security, and Justice give Ireland and the
UK the right to participate in these measures, but they cannot be compelled to
do so.
There are also Protocols on the Role of the National Parliaments, Subsidiarity,
and Proportionality.
22.3 The Reform Treaty
The consolidated Lisbon Treaty (also known as the Reform Treaty) is in fact
two separate Treaties, each of which has the “same legal value”23. It provides
for the continued existence and amendment of the TEU and the EC Treaty was
renamed the Treaty on the Functioning of the Union (TFEU).
The European Union now has a single legal personality and the word
“Community” is replaced throughout the texts by the word “Union”. Acts
adopted under the pre-existing Treaties continue to have effect.
Some elements of the failed Treaty establishing a Constitution for Europe,

which had a constitutional character, were dropped e.g. formal adoption of
symbols such as the flag, the anthem and Europe day. However other feautres
were retained.
22 Protocols form an integral part of the Treaties and have the same status as the Treaties
themselves.
23 Article 1(2) TFEU.

Competences (EU powers) are more clearly delineated whilst simultaneously
expanded to included areas such as energy, intellectual property, space,
humanitarian aid, sport and civil protection as had been suggested in the Treaty
establishing a Constitution for Europe. A further new competence of climate
change is also added.
There is an increased role for national parliaments, most notably in the

legislative process, and legal effect is afforded to the Charter of Fundamental
Rights. There is also provision for the EU to accede to the ECHR, and on the
specific nature of CFSP.
A revised mechanism in the area of judicial co-operation in criminal matters and

police co-operation would allow some Member States to move forward and
others not to participate.
To bridge the “democratic deficit” the citizens’ initiative was introduced,

affording EU citizens the power of legislative initiative in certain circumstances.
Furthermore, the powers of the European Parliament were significantly
increased through the extension of the co-decision (now called the “ordinary
legislative procedure”) to approximately 40 new areas, e.g. C.A.P., the
liberalisation of services, legislation governing visas, border checks and the
management of external frontiers; and structural funds.
The EP also gained a power of “assent” in respect of anti-discrimination and in

respect of Article 352 TFEU, a catch-all provision.24 Following the Lisbon
Treaty and the accession of Croatia to EU in 2013, MEP allocation for Member
States was amended e.g. in the case of Ireland 12 MEPs were elected in the
2009-2014 Session while only 11 MEPs were eligible for election thereafter in
a Parliament of 751 members. The EP’s role in the budgetary process was
increased. The Lisbon Treaty provided for the creation the new posts of
President of the European Council and of High Representative of the Union for
Foreign Affairs and Security Policy.
QMV was also further extended in the Council to approximately 50 new areas
but unanimity as retained in respect of defence and taxation. The system of
QMV in the Council was changed to a double majority voting system, under
which a qualified majority ordinarily consists of 55% of the Member States
comprising at least 65% of the population of the EU. Where a proposal is not
initiated by the Commission or the High Representative for Foreign Affairs and
Security Policy, 72% of Member States must support the proposal. A blocking
minority should comprise at least four States. Under the Lisbon Treaty the
European Council is given the status of an institution of the European Union.
As noted above, the appointment of a Commissioner per Member State was

retained, with the President of the Commission to be appointed by the EP.
The Institution of the Court of Justice is renamed the Court of Justice of the
European Union (CJEU). The top-level Court was to be called the Court of
Justice (CoJ). The Court of First Instance is renamed the General Court (GC).
In general, the Court of Justice’s jurisdiction in respect of CFSP remains
extremely limited, while the right of individuals to bring legal proceedings before
the Court of Justice has, in theory, been expanded.

Chalmers notes that the abolition of the three-pillar structure established at
Maastricht has two important implications:
The first was a significant extension of the supranational qualities and

procedures of the Union to govern more extensively the sensitive fields
of policing and criminal justice. The second was the extension of the
so-called flexibility provision which permits legislation to be adopted if
no more specific legal provision allows this.25
Decision-making in CFSP continued to be primarily based on unanimity. QMV

could not be applied to decisions having military or defence implications. The
intergovernmental character of CFSP was thus retained.
Two significant positions were also provided for: President of the European
Council (appointed for a renewable term of two and a half years) and a High
Representative for Foreign Affairs and Security Policy. The President of the
European Council is currently former Belgian Prime Minister Charles Michel.
The High Representative chairs the Foreign Affairs Council, but also holds the
role a Vice-President of the Commission, thus ensuring the consistency and
coordination of the EU’s external policy. This role is currently held by Josep
Borrell of Spain.
The High Representative for Foreign Affairs and Security Policy is assisted by
a new European External Action Service. Provision for mutual aid and
assistance in the event of armed aggression was established, qualified by the
requirement that it shall not prejudice the specific character of the security and
defence policy of certain Member States.
The enhanced co-operation procedure (previously called “closer co-operation”)

- an example of differentiated integration - was amended again without ever
having been used in its Treaty of Nice or Treaty of Amsterdam incarnations.
Participation of a minimum of nine States is required.
In the Area of Freedom Security and Justice. Ireland and the UK secured the
extension of a Protocol which provides them with an opt-in in relation to border
checks, asylum, immigration and judicial co-operation in civil matters to also
cover judicial co-operation in criminal matters and police co-operation.
A simplified mechanism of Treaty revision was included, alongside the

traditional method of Treaty reform.
The Treaty of Lisbon was challenged before the German Federal Constitutional
Court (Gauweiler v. Treaty of Lisbon, Judgment of 30 June 2009) and before
the Constitutional Court of the Czech Republic (Pl ÚS 19/08 Treaty of Lisbon,
Judgment of 26 November 2008 and Pl ÚS 29/09 Treaty of Lisbon II, Judgment
of 30 June 2009).
23. A Brief Overview of the TEU and the TFEU post-Lisbon

A brief overview of the subject matter of the TEU and the TFEU will be provided
however, this be explored in more depth later in the course.
25 Chalmers (2nd ed.), at 46.

The two Treaties, commonly known as the Reform Treaty or the Lisbon Treaty,
comprise the primary law of the EU, a de facto constitutional document.
23.1 Treaty on the European Union (TEU)
The TEU consists of a Preamble and six Titles. The TEU largely sets out the
missions and values of the EU.
Title I provides for the establishment of the European Union on which the
Member States confer competences and sets out the objectives of the EU. It
sets out the limits of EU competences. Important concepts, such as the
principle of conferral (whereby the EU enjoys only the competences
conferred on it), as well as the principles of subsidiarity and proportionality,
are set out therein. The duty of Member State loyal co-operation to the EU is
set out together with provisions governing the EU’s commitment to human
rights.
Title II contains provisions on democratic principles. It provides for EU

citizenship, sets out the EU’s foundation upon representative democracy and
contains the basis for the new citizens’ initiative and the enhanced role of
national parliaments.
Title III contains the key provisions on the EU institutions, identifying the
seven institutions and the composition and functions of the five main
institutions. More detailed provisions on each of the institutions are contained
in the Treaty on the Functioning of the European Union (TFEU). The new post
of High Representative of the Union for Foreign Affairs and Security Policy is
also provided for.
Title IV contains the provisions on Enhanced Co-operation whereby it is

possible for a group of Member State to integrate more deeply within the EU
institutional framework but without the non-participating States being bound by
the rules.
Title V contains General Provisions on the Union’s External Action and

Specific Provisions on Common Foreign and Security Policy.
Title VI contains provisions on the EU’s legal personality, that the Treaty is
concluded for an unlimited period, the procedures for amending the TEU and
the TFEU (the “Ordinary Revision Procedure” and the “Simplified Revision
Procedures”), a provision on accession of new Member States, and for the first
time a provision on the voluntary withdrawal from the EU of a Member State—
more commonly referred to as Article 50 TEU.
23.2 Treaty on the Functioning of the European Union (TFEU)
The TFEU comprises a Preamble and Seven Parts. It provides for the detailed
workings of the EU.
Part I is entitled “Principles” and provides that the TFEU organises the
functioning of the Union and determines the EU’s areas of competences and
the delimitation of those competences. There are detailed provisions on the
categories of competences. Part I also contains provisions having general
application. These include equality between men and women; combating

discrimination based on sex, racial or ethnic origin, religion or belief, disability,
age, or sexual orientation; protection of the environment; consumer protection;
animal welfare; transparency of Union action and protection of personal data.
Part II is concerned with Non-Discrimination and Citizenship of the EU.
Part III sets out the Union Policies and Internal Actions. There are provisions
on: the Internal Market, the Free Movement of Goods, Agriculture and
Fisheries, the Free Movement of Persons, Services and Capital, the Area of
Freedom Security and Justice, Judicial Co-operation in Civil Matters and
Judicial Co-operation in Criminal Matters, Police Co-operation, Transport,
Common Rules on Competition, Taxation and Approximation of Laws,
Economic and Monetary Policy, Employment, Social Policy, the European
Social Fund, Education, Vocational Training, Youth and Support, Culture,
Public Health, Consumer Protection, Trans-European Networks, Industry,
Economic, Social and Territorial Cohesion, Research and Technological
Development and Space, the Environment, Energy, Tourism, Civil Protection
and Administrative Co-operation,
Part IV contains provisions on Association of the Overseas Countries and

Territories.
Part V concerns the EU’s External Action including a Common Commercial

Policy, Co-operation with Third Countries and Humanitarian Aid and
International Agreements, the EU’s relations with international organisations
and third countries, EU Delegations, and sets out the Solidarity Clause.
Part VI contains institutional and financial provisions and the provisions

on Enhanced Co-operation. On the institutional side there are more detailed
provisions on each of the seven EU institutions. These provisions should be
read with the institutional provisions contained in the TEU. This Part also
contains provisions on the secondary legal acts of the EU. There are provisions
on the EU’s advisory bodies (the Economic and Social Committee and the
Committee of the Regions) and on the European Investment Bank. On the
Financial side there are provisions on the Union’s own resources, the budget
and combating fraud.
Part VII contains the General and Financial provisions including that the
Treaty is concluded for an unlimited period.
In addition, there are 37 Protocols attached to the Treaties which are legally
binding.
Some of the more important protocols include:
• Protocol on the role of national parliaments in the EU.

• Protocol on the application of subsidiarity and proportionality.
• Protocol on the statute of the Court of Justice of the European
Union.
• Protocol on the euro-group.
• Protocol the Schengen acquis integrated into the framework of the
European Union.
• Protocol on the application of the Charter of Fundamental Rights of
the EU to Poland and the UK.

• Of Irish interest is the Protocol on Article 40.3.3° of the Constitution
of Ireland (the provision on the right to life of the unborn).
In addition, there are 65 Declarations concerning provisions of the Treaties,

Protocols annexed to the Treaties and by Member States. These are not legally
binding.
23.3 Charter of Fundamental Rights of the EU
Article 6(1) TEU provides that the Charter of Fundamental Rights of the EU,
annexed to the Lisbon Treaty, has the same legal value as the Treaties.
24. The EU’s Response to the Financial Crisis

In October 2008 at the first Euro-area summit it was determined that
governments would buy into banks if required, to deal with a worsening
economic crisis.
In May 2010, the Euro area member states determined to assist Greece
through a mechanism providing bilateral loans in conjunction with the
International Monetary Fund (IMF).
The 27 EU countries, in a joint effort with the Euro area, also decided to create
a 500 billion Euro package of measures to preserve financial stability in Europe.
Two new temporary funds were created: European Financial Stability

Mechanism (EFSM), an instrument of the 27 EU Member States. and the
European Financial Stability Facility (EFSF), an instrument of the Euro area
countries. In November 2010, it was decided to provide Ireland with assistance
through the EFSM and the EFSF.
Some concern was expressed about the consistency of the intergovernmental

measure with the so called “no bail-out” rule in Article 125 TFEU.26
In March 2011, the European Council adopted a comprehensive set of

measures to ensure the long-term budgetary stability of the Euro area,
including the Euro Plus Pact on stronger economic policy coordination which
was agreed by the heads of government of the Eurozone states together
with six other EU member states. (Bulgaria, Denmark, Latvia, Lithuania,
Poland, Romania).
European Council Decision of March 25, 2011 amending Article 136 of the
Treaty on the Functioning of the European Union with regard to a stability
mechanism for Member States whose currency is the Euro. (European
Council Decision 2011/199/EU) added a new sub-paragarph (3) to Article 136
TFEU to safeguard the stability of the euro area as a whole.
The decision indicated that it would enter into force on January 1, 2013
provided that all national approval procedures had been completed at that time,
or failing that on the first date of the month following receipt of the last of the
notifications.
26See for example De Witte, “The European Treaty Amendment for the Creation of a Financial
Stability Mechanism” European Policy Analysis, 2011:6, 1, 6. (www.sieps.ie).

In April 2011, it was decided to provide Portugal with assistance through the
EFSM and the EFSF.
In July 2011, a new assistance programme was agreed for Greece. In

September 2011, the EU concluded negotiations on the reform of the Stability
and Growth Pact which had accompanied the creation of the Euro. The reform
also aims to strengthen the processes to avoid economic imbalances.
In October 2011, an agreement between the Council of the EU and the

European Parliament on a package of six legislative proposals on economic
governance was announced. The so called “Six-Pack” of measures is aimed
at strengthening economic governance in the EU and particularly in the
Eurozone as part of the EU’s response to the sovereign debt crisis.27
At the European Council in December 2011, the 17 Eurozone countries and

several other EU countries agreed to work towards a stronger economic union.
This implies a new fiscal compact and strengthened economic policy
coordination together with the development of stabilisation tools to face short
term challenges.
On February 2, 2012, the 17 Euro area Member States signed a Treaty, the
European Stability Mechanism Treaty (ESM), to establish a new permanent
international financial institution. The institution is an intergovernmental
organisation under public international law and is based in Luxembourg. The
Treaty entered into force on September 27, 2012. The ESM was inaugurated
on October 8, 2012. Like its predecessor, the temporary EFSF, its purpose is
to provide financial assistance to its members (the Euro area countries),
experiencing or being threatened by severe financial problems. The Treaty was
regarded as essential to safeguard the financial security of the Eurozone. From
mid-2013, the EFSF was to be phased out and from July 1, 2013, would
become the sole and permanent mechanism for responding to new requests
for financial assistance by Euro area Member States. As international law was
used as a means of furthering European integration the ESM is outside the EU
legal order.28
The failure to hold a referendum in Ireland regarding the ESM Treaty was the
subject matter of an unsuccessful legal challenge in Pringle v. Ireland [2012]
IEHC 296; [2012] IESC 47.29 The Supreme Court determined that agreement
and ratification of the ESM Treaty constituted a permissible exercise of a power
of the executive.
On March 2, 2012, 25 Member States signed the Treaty on Stability,

Coordination and Governance in the Economic and Monetary Union
(TSCG) aimed at strengthening fiscal discipline and introducing stricter
surveillance within the Eurozone area, in particular by establishing a “balanced
budget” rule. The two EU Member States not involved are the UK and the
Czech Republic. A referendum was held in Ireland to permit Ireland to ratify the
TSCG. A new provision was inserted into Article 29 of the Irish Constitution at
27 Council of the European Union, Press Release, October 4, 2011, 14498/11, Presse 344.
28 De Witte, “The European Treaty Amendment for the Creation of a Financial Stability
Mechanism” European Policy Analysis, 2011:6, 1, 8. (www.sieps.ie).
29 Both the High Court and the Supreme Court referred questions to the Court of Justice; Pringle
v. Government of Ireland, Ireland and the Attorney General [2012] ECR, nyr, 27th November
2012 (Case 370/12). These decisions will be examined in the chapter on EU Law in Ireland.

paragraph 10˚. The TSCG entered into force on January 1, 2013. This Treaty
is sometimes referred to as the Fiscal Compact.
In July 2012, financial assistance was provided to Spain for the purposes of
recapitalising financial institutions.
In Pringle v. Government of Ireland, Ireland and the Attorney General

ECLI:EU:C:2012:756 (Case 370/12), the CoJ sitting as a court of 27 judges,
upheld the validity of European Council Decision 2011/199/EU. This case will
be discussed in detail later in the Manual.
25. 2013 and Future Enlargements

Croatia joined the EU on the July 1, 2013, bringing the total number of Member
States to 28.
Candidate countries for EU membership are; the Former Yugoslav Republic of

Macedonia, Iceland, Montenegro, Serbia, and Turkey. Potential candidate
countries are: Albania, Bosnia and Herzegovina, and Kosovo.
Under Article 20(4) TEU, all new states are required to accept and adopt the
entire body of EU Law, known as the acquis communautaire, and which is
contained in the Treaties, secondary EU law, judgments of the Court of Justice
of the European Union (CJEU) and agreements with third countries.
Considering developments in Turkey in recent years, the EU’s future

relationship with Turkey is rather uncertain. Public statements by President
Erdogan as to the possible re-introduction the death penalty to punish
participants in the failed coup-d’état of July 15, 2016 puts Turkey in direct
conflict with core EU principles of democracy and rule of law that are essential
pre-requisite to EU membership.
In light of the declaration of a State of Emergency in Turkey, former High

Representative Federica Mogherini called on Turkish authorities “to respect
under any circumstances the rule of law, human rights and fundamental
freedoms, including the right of all individuals concerned to a fair trial.”30
26. Nobel Peace Prize 2012

The Nobel Peace Prize 2012 was awarded to the EU31 on the basis that “the
EU and its predecessors has for over six decades contributed to the
advancement of peace and reconciliation, democracy and human rights in
Europe.”
While the Committee conisdered that “[t[he EU is currently undergoing grave

economic difficulties and considerable social unrest”, the Committee wished “to
focus on what it sees as the EU’s most important result: the successful struggle
for peace and reconciliation and for democracy and human rights. The
30 Statement by High Representative/Vice-President Federica Mogherini and Commissioner

Johannes Hahn on the declaration of the State of Emergency in Turkey, July 21, 2016.
31 http://nobelpeaceprize.org/en_GB/laureates/laureates-2012/announce-2012/.

stabilizing part played by the EU has helped to transform most of Europe from
a continent of war to a continent of peace.”
27. Refugee crisis at the EU’s External Borders

More than a million refugees and migrants crossed into Europe in 2015 as a
result of serious conflicts in the Middle East and North Africa, sparking a crisis
as countries struggled to cope with the influx, and creating division in the EU
over how best to deal with resettling people.
In spite of the existence of the EU asylum system and the Dublin III Regulation
which governs applications for asylum within EU27, the EU became
overwhelmed by the sheer volume of entrants at the EU’s external borders.
Efforts to agree a new legal instrument which provided for a more equitable
distribution of asylum seekers across the continent failed, therefore resulting in
countries at the EU’s southern and eastern borders receiving a
disproportionately high number of asylum applications and accusations of a
lack of solidarity amongst Northern European Member States towards their
Southern European counterparts.
28 “Brexit” and invoking Article 50 TEU

The UK government, elected in 2015, pledged to hold a referendum on
continued UK membership of the EU by 2017.32
On February 19, 2016, in the aftermath of a special EU Summit on a New

Settlement for the UK within the European Union, the European Council
published its Decision of the Heads of State or Government or the related
Declaration in Annex III, the culmination of months of negotations between
British Prime Minister, David Cameron, and Heads of State across the
European Union seeking to secure a “reformed EU” ahead of the proposed
referendum in the UK and Gibraltar on whether the UK should remain a
member of the European Union.
Measures proposed included new EU laws dealing with abuse and distortion
of free movement of EU citizens in relation to an emergency brake on benefits,
EU citizens’ non-EU family members, and the export of child benefit.
In relation to the Eurozone, explicit commitments were secured to prevent

discrimination against countries and companies outside the single currency; to
avoid “caucusing” by eurozone members to the disadvantage of Member
States outside of the Euro; and to limit the jurisdiction of the European Central
Bank to the oversight of eurozone institutions.
The Decision affirmed that the “the process of creating an ever closer union
among the peoples of Europe does not offer a legal basis for extending the
scope of any provision of the Treaties or of EU secondary legislation” in an
attempt to curtail judicial activism of the Court of Justice of the European Union.
32Foster, Foster on EU Law (4th ed., Oxford University Press, 2013), at 8: The Relationship of
the UK with the European Communities and Union.

In addition, the Decision guaranteed that the extension of EU competence
could only take place through revision of treaties, which, according to the UK’s
European Union Act 2011, gave the British people the right to decide by
referendum.
Finally, in terms of voting rights, the Decision reaffirmed that if 55% of the
allocated voting share of national parliaments in the EU chose to block a new
draft piece of EU legislation, then member governments could not consider it
until it has been amended. This sought to give national parliaments the
opportunity to play a more active scrutiny role on behalf of their electorates,
increasing the accountability that Cameron had previously demanded.
Crucially, the Decision stated that should the referendum result in a vote for
the UK to leave the European Union, the set of arrangements agreed would
cease to exist.
On February 20, 2016, Mr. Cameron called for a referendum to be held on June
23, 2016, in accordance with the European Union Referendum Act 2015. After
a fraught referendum campaign, British citizens voted by 51.8% to 48.2% to
leave the European Union. Crucually, the referendum is non-binding and this
led to a number of constitutional challenges contesting the referendum result
and the UK’s application of the mechanism for withdrawal which will be
discussed below.
The Treaty on European Union (TEU) provides for a withdrawal mechanism in

Article 50 which sets out a two-year timeframe for such withdrawal.
Article 50 TEU provides that:
1. Any Member State may decide to withdraw from the Union in

accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the

European Council of its intention. In the light of the guidelines
provided by the European Council, the Union shall negotiate and
conclude an agreement with that State, setting out the
arrangements for its withdrawal, taking account of the framework for
its future relationship with the Union. That agreement shall be
negotiated in accordance with Article 218(3) of the Treaty on the
Functioning of the European Union. It shall be concluded on behalf of
the Union by the Council, acting by a qualified majority, after obtaining
the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the
date of entry into force of the withdrawal agreement or, failing that, two
years after the notification referred to in paragraph 2, unless the
European Council, in agreement with the Member State concerned,
unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European

Council or of the Council representing the withdrawing Member State
shall not participate in the discussions of the European Council or
Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b)
of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its
request shall be subject to the procedure referred to in Article 49.
Article 50(1) TEU has generated significant attention, providing that a Member
State may decide to withdraw from the Union “in accordance with its own
constitutional requirements”.
Attempts by the UK government to provide its notice to withdraw from the EU

without authorisation by an Act of Parliament became the subject of legal
challenge in R (Miller and another) v. Secretary of State for Exiting the
European Union [2017] 2 WLR 583. On January 24, 2017 the UK Supreme
Court held (8:3), inter alia, that the terms of the European Communities Act
1972 which gave effect to the UK’s membership of the EU were inconsistent
with the exercise by a minister of any power to withdraw from the EU Treaties
without authorisation by a prior Act of Parliament.
As regards Article 50(3), in Wightman & Ors. C-621/18, EU:C:2018:999, the

Court of Justice, in Plenary sitting under the expedited procedure, held that
Article 50 TEU allows a Member State to revoke unilaterally the notification of
its intention to withdraw from the European Union. That request for a
preliminary ruling had been submitted by the Court of Session, Inner House,
First Division (Scotland), in judicial-review proceedings brought by members of
the UK Parliament, the Scottish Parliament, and the European Parliament to
determine whether and how the notification referred to in Article 50 TEU could
be revoked before expiry of the two-year period provided for in paragraph 3 of
that provision, with the effect that such revocation would result in the United
Kingdom remaining in the European Union.
The Court stated that Article 50 TEU pursues two objectives. First, it enshrines
the sovereign right of a Member State to withdraw from the European Union,
since that decision need not be taken in concert with the other Member States
or with the EU institutions. Secondly, Article 50 TEU establishes a procedure
to enable such withdrawal to take place in an orderly fashion. Accordingly, it
would be inconsistent with the EU Treaties’ purpose of creating an ever-closer
union among the peoples of Europe to force the withdrawal of a Member State
which, having notified its intention to withdraw from the European Union in
accordance with its constitutional rules and following a democratic process,
decides to revoke the notification of that intention through such a process.
The European Union (Notification of Withdrawal) Act 2017 received Royal

Assent on March 16, 2017 and on March 29, 2017, the UK notified the
European Council of its intention to withdraw from the EU.
The initial phase of negotiations that followed in May 2017, focused on three
key issues: citizens’ rights; the Irish border with Northern Ireland; and the
financial settlement with the European Union. “Sufficient progress” was
required in Phase I of these negotiations to progress to examining substantive
issues, and whilst this threshold was reached in December 2017, the so-called
“Irish question” remained contentious.
On December 8, 2017 the Joint Report from the negotiators of the European
Union and the United Kingdom Government on progress during phase 1 of

negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal
from the European Union (“Joint Report”) charting progress during phase 1 of
Article 50 TEU negotiations recognised (at [52]), “the birth right of all the people
of Northern Ireland to choose to be Irish or British or both and be accepted as
such” and that “the people of Northern Ireland who are Irish citizens will
continue to enjoy rights as EU citizens, including where they reside in Northern
Ireland.” It goes on to ensure (at [53]), “no diminution of rights is caused by [the
UK’s] departure from the European Union.”
While both the UK and the EU sought to protect the Good Friday Agreement in
“all its parts” and was of “utmost importance”, this remains a distinct strand of
current negotiations, with the UK seeking to avoid a “hard border” between
Ireland and Northern Ireland.
In the event of no deal being reached, the UK undertook to ensure “full

alignment” with “those rules of the Internal Market and the Customs Union
which, now or in the future, support North-South cooperation, the all-island
economy and the protection of the [Good Friday] agreement” the Joint Report
sought to ensure that a hard border would not be reinstated between Ireland
and Northern Ireland via a so-called “Backstop” arrangement.
In addition, “no new regulatory barriers” would be mounted between UK and NI

unless the Northern Ireland Executive and Assembly agreed that “distinct
arrangements are appropriate”. It also required (at [50]) that the UK ensure “the
same unfettered access” for Northern Ireland business to UK.
The UK (at [54]) “confirms and accepts the Common Travel Area and
associated rights and privileges can continue to operate without affecting
Ireland’s obligations under Union law, in particular with respect to free
movement for EU citizens”.
However, efforts to place these political commitments on a legal footing was

more difficult. The move to phase II of negotiations under the Joint Report was
described as an “agreement in principle” reached on the “package as a whole”,
subject to the proviso that “nothing is agreed until everything is agreed”, but
“full details” to be reflected in a substantive withdrawal agreement. Thus, the
Joint Report was a “common understanding” with no legal effect.
A Withdrawal Agreement was endorsed by the European Council and adopted

by the UK Cabinet in November 2018.
The Withdrawal Agreement was feted as a success at the time of its conclusion,
with the EU and UK reaching agreement on matters such as citizens’ rights,
transitional arrangements, financial provisions, and institutional issues, as well
as protocols on Northern Ireland, Gibraltar, and military bases in Cyprus. It was
accompanied by a Political Declaration on future EU-UK relations setting out
the framework for future negotiations towards future partnership and while not
legally binding, it confirmed the “clear intent” of the parties to negotiate the
future relationship agreement in good faith based on an “ambitious, broad,
deep and flexible partnership across trade and economic cooperation, law
enforcement and criminal justice, foreign policy, security and defence and wider
areas of cooperation.”
Yet the agreement was rejected by the UK House of Commons on three

occasions, and in light of the impasse, the UK had to seek extensions upon the

expiry of the official withdrawal period, the two-year period stipulated in Article
50(3) TEU proving overly optimistic for the negotiation of and legislation for
withdrawal, given the complexity of these negotiations.
One of the main points of contention was the Protocol on Ireland and Northern
Ireland No 19 (“the backstop"). Protocol No. 19 provided for a Single Customs
Territory between the entire UK which entailed no tariffs or quotas between the
EU and UK, allowed the UK to retain EU tariffs for third-country goods and a
level playing field as regards competition law, state aid, etc., but provided for
different levels of regulatory harmonisation for goods between Northern Ireland
and Great Britain.
This was to avoid a hard border between Ireland and Northern Ireland. The
backstop would only apply in circumstances where, after the expiry of the
transition period, no future relationship agreement has been concluded and
would remain in force only until such time as a future relationship agreement is
reached, which would supersede the backstop.
Following his election in July 2019, UK Prime Minister, Boris Johnson,

maintained that the backstop was “undemocratic” as it differentiated between
Northern Ireland and Great Britain, thereby undermining the Union, while the
EU continued to maintain that the Withdrawal Agreement was not open for
renegotiation but was willing to consider wording in the non-legally binding
Political Declaration to provide the UK with necessary assurances.
However, following extensive negotiations the EU and the UK reached an

agreement on the Withdrawal Agreement, with a revised Protocol on Ireland
and Northern Ireland (eliminating the ‘backstop’) and a revised Political
Declaration out setting the framework of the future EU-UK partnership.
The Protocol on Ireland / Northern Ireland is a fully legally operative solution

that that avoids a hard border on the island of Ireland, protects the all-island
economy and the Good Friday (Belfast) Agreement in all its dimensions, and
safeguards the integrity of the Single Market. It now forms part of the
Withdrawal Agreement rather than being a backstop. Thus, it was conceived
as a stable and lasting solution and will become applicable at the end of the
transition period.
The UK House of Commons voted 330 to 231 in favour of the Withdrawal

Agreement Bill on 9th January 2020. Representatives of the UK and the EU
signed the Withdrawal Agreement on 24th January 2020 and on 29th January
2020 the European Parliament approved the Withdrawal Agreement. The
Council of the European Union concluded the Withdrawal Agreement on 31st
January 2020 and on 1st February 2020 the United Kingdom became a third
country and the Withdrawal Agreement entered into force.
While the UK officially left the European Union on January 31, 2020, Article 126
of the Withdrawal Agreement provided for a transition until December 31t, 2020,
with one single extension of one or two years possible under Article 131 of the
Withdrawal Agreement provided it was requested before July 1, 2020. No such
request was made and transition arrangements, governing a broad range of
policy fields such as the EU Customs Union, the Single Market, Justice and
Home Affairs, mergers, competition law, state aids, standards in trade,
contractual arrangements, banking and insurance, research and development,
and environmental and pensions law, ended on December 31, 2020.

The EU-UK Trade and Cooperation Agreement (“TCA”), signed on December
30, 2020, was applied provisionally as of January 1, 2021 and entered into
force on May 1, 2021.
It sets out preferential arrangements for the UK, as a third country, in areas
such as trade in goods and in services, digital trade, intellectual property, public
procurement, aviation and road transport, energy, fisheries, social security
coordination, law enforcement and judicial cooperation in criminal matters,
thematic cooperation and participation in Union programmes. It is underpinned
by provisions ensuring a level playing field and respect for fundamental rights.
The EU-UK TCA consists of:
• a Free Trade Agreement (“FTA”), with ambitious cooperation on

economic, social, environmental and fisheries issues,
• a close partnership on citizens’ security,
• an overarching governance framework.
Foreign policy, external security and defence cooperation is not covered by the
Agreement, nor does it cover any decisions relating to equivalences for
financial services, the adequacy of the UK data protection regime, or the
assessment of the UK’s sanitary and phytosanitary regime for the purpose of
listing it as a third country allowed to export food products to the EU.
The TCA is underpinned by public international law and emphasises:
. . . nothing in this Agreement or any supplementing agreement shall be

construed as conferring rights or imposing obligations on persons other
than those created between the Parties under public international law,
nor as permitting this Agreement or any supplementing agreement to
be directly invoked in the domestic legal systems of the Parties. (Art.
16.1)
Its institutional structure comprises an overarching Partnership Council,

chaired at Ministerial level, and range of specialised committees (e.g., trade
partnership committee, trade specialised committees on matters such as
goods, customs and rules of origin, services, etc. and specialised committees
on issues such as energy, aviation, road transport, etc). with EU and UK
representatives on these different configurations.
Part Two of the TCA on Trade, Transport, Fisheries And Other Arrangements
pertains to future economic relations and outlines rules on tariff- and quota-free
trade as well as the need to respect “rules of origin.” It confers a right to
regulate, but also a duty to respect the other party’s regulations and preferential
trading arrangements now come at additional cost. General commitments are
made on financial services, loss of “passporting rights” and the need for an EU
equivalence decision on this. Part Two of the TCA also safeguards a “level
playing field” between the EU and UK in respect of competition, state aid, and
social and environmental standards. It also envisages a reduction of EU’s
fishing quota in UK waters by 25% over 5.5 years
Law enforcement and judicial cooperation in criminal matters is now premised

on essential safeguards such as respect for fundamental rights and data
protection while both parties envisage forms of information exchange.
Cooperation is also envisaged on health security and cyber security, however

no formal commitments have been given on asylum, family reunification and
(irregular) migration.
Crucially, dispute resolution, set out at Part Six of the TCA, is rather complex,
comprising overarching general rules subject to several exceptions which are
not confined to Part Six of the Agreement. In essence, the CJEU does not play
a role in dispute resolution, and political solutions are favoured, with recourse
to an arbitration panel where necessary. It also envisages the possibility of
retaliation in the event of non-compliance with the TCA, which risks the
possibility of the imposition of tariffs in such circumstances in the future. It also
provides for the possibility of “compensatory/rebalancing measures” without a
prior ruling by the arbitration panel.
Finally, a review mechanism at Part Seven provides for a review of

implementation of the TCA after five years. The EU pledges to inform and
consult UK about future enlargements and this Part also provides a 12-month
notice period for termination of the agreement by either party by written
notification through diplomatic channels.
It is clear that the result of the UK referendum in 2016 led to a period of great
legal (and economic) uncertainty as the UK continues redefine its changing
relationship with its European neighbours, notably with Ireland, given the
presence of a land border with the EU and the implications for the Northern
Ireland Peace Process and for trade North and South of the Border. As Craig
and de Búrca note, “the very idea that a state should seek to leave, when
hitherto the momentum had been in the other direction, with states seeking to
join, was a significant jolt to the EU.”33
29. Recent developments
29.1 European Green Deal
One of key priorities on the agenda of the Von der Leyen Commission 2019-
2024 is a “European Green Deal” to tackle climate change within EU 27.
The European Commission describes the European Green Deal as providing

a roadmap with actions to boost the efficient use of resources by moving to a
clean, circular economy and to restore biodiversity and cut pollution.
It outlines investments needed and financing tools available and explains how
to ensure a just and inclusive transition to make the EU by 2050.
The EU will provide financial support and technical assistance to help people,
businesses and regions that are most affected by the move towards the green
economy. This is called the Just Transition Mechanism and will help mobilise
at least €100 billion over the period 2021-2027 in the most affected regions.
33Craig and de Búrca, 7th ed., at p. 25. For a discussion of Brexit in greater detail, see Chapter
2 of Craig and de Búrca, 7th ed.

29.2. Covid-19 Pandemic
Some commentators have argued that the EU was slow to act or to coordinate
collective action by EU27 in the fight against Covid-19 and that as some
Member States began to close their borders, that the crisis undermined
supranationalism. However, the reality is that, in accordance with Article 6
TFEU, the protection and improvement of human health is neither an exclusive
nor a shared competence (power) of the EU. The Union has competence to act
only to support, coordinate, or supplement the actions of the Member States.
Health Initiatives
Notwithstanding the foregoing, health initiatives by the EU included the
provision of EU funding to support health systems, joint measures to secure
personal protective equipment (PPE) and joint procurement of PPE by Member
States, while the European Centre for Disease Control collaborated with health
authorities at national level.
The EU 's Horizon 2020 research programme began funding 18 research

projects and 140 teams across Europe to help find a vaccine against COVID-
19. At the time of writing, the Commission had granted conditional marketing
authorisation for BioNTech and Pfizer, Moderna, AstraZeneca, and Johnson &
Johnson COVID-19 vaccines and had authorised six contracts for 2.6 billion
doses of future vaccines.
Economic Measures
The pandemic resulted in the temporary suspension of state aid34 and
increased flexibility afforded to Member States on budgetary matters, while the
EU granted a temporary waiver suspending airport slot requirements to assist
air carriers in coping with the drastic drop in air traffic caused by the COVID-19
outbreak. The European Central Bank agreed Pandemic Emergency Purchase
Programme for private and public securities providing a total of €1 350 billion
to relieve government debt during the crisis, as well as €120 billion in
quantitative easing and €20 billion in debt purchases.
In April 2020, EU leaders decided to work towards establishing a EU recovery

fund aimed at mitigating the effects of the crisis. They tasked the European
Commission with urgently coming up with a proposal, which would also clarify
the link between the fund and the EU's long-term budget. The proposal, a
recovery plan for Europe, was presented by the European Commission in May
2020.
On July 21, 2020, EU leaders agreed on a €750 billion recovery effort, Next
Generation EU, to help the EU tackle the crisis caused by the pandemic.
Alongside the recovery package, EU leaders agreed on a €1074.3 billion long-
term EU budget for 2021–2027.
Alongside €540 billion of funds already in place for three safety nets (for
workers, for businesses and for member states), the overall EU's recovery
package amounts to approximately €2 364.3 billion. The last step of the
adoption of the next long-term EU budget was reached on December 17, 2020.
34In Ryanair v. Commission (Case T-259/20), the General Court held that the deferral of the
payment of taxes introduced by France to support airlines which held a French licence amid
the COVID-19 pandemic was compatible with EU Law.

European Health Union
On November 11, 2020, the Commission proposed a European Health Union,
based on two pillars (i): stronger health security framework, harmonising
European, national, and regional preparedness and response plans, to be
stress-tested and audited regularly by the Commission and EU agencies; and
(ii) an EU emergency system that would trigger increased coordination and
rapid action to develop, stockpile, and procure the equipment needed to face
the crisis. It also proposed a bigger role for the European Centre for Disease
Prevention and Control (ECDC) and reinforcing the mandate of the European
Medicines Agency to cover the safety of medicines and medical devices, risk
of shortages, and clinical trials of medicines.
A new Health Emergency Response Authority (HERA) was also proposed. In

March 2021, the Commission launched an online public consultation and it’s
also due to hold talks with Member States and stakeholders, with a view to
delineating the exact remit of HERA in a legislative proposal later in 2021.
EU Digital COVID Certificate

On March 17, 2021, the European Commission presented a proposal to create
an EU COVID Certificate to facilitate the safe free movement of citizens in the
EU during the pandemic.
On May 20, 2021, the European Parliament and the Council reached a
provisional agreement on the EU Digital COVID Certificate, which entered into
application inthe EU in July 2021, with a phase-in period between July 1 and
August 12 for Member States to issue the new certificate to its citizens.
29.3. Conference on the Future of Europe
On 1st March 2017, as the EU marked the 60th Anniversary of the Treaty of
Rome, and in the shadow of Brexit, the European Commission launched its
White Paper on the Future of Europe. Then Commission President Jean-
Claude Juncker noted that “it was time for a united Europe of 27 to shape a
vision for its future"
The White Paper offered five scenarios for how the Union could evolve -
Carrying On, Nothing but the Single Market, Those Who Want More Do More,
Doing Less More Efficiently and Doing Much More Together. This marked the
start of the debate with the European Parliament, Council, Member States and
civil society, which was elevated when the then European Commission
Presidential candidate Ursula Von der Leyen, in her political guidelines,
committed to a Conference on the Future of Europe:
I want citizens to have their say at a Conference on the Future of

Europe, to start in 2020 and run for two years.
The Conference should bring together citizens, including a significant

role for young people, civil society and European institutions as equal
partners. The Conference should be well prepared with a clear scope
and clear objectives, agreed between the Parliament, the Council and
the Commission.
I am ready to follow up on what is agreed, including by legislative action

if appropriate. I am also open to Treaty change. Should there be a

Member of the European Parliament put forward to chair the
Conference, I will fully support this idea.35
On assuming the role of Commission President, Von der Leyen appointed a

Vice-President in her Cabinet for Democracy and Demography tasked with
driving this forward.
The Commission proposed that the conference would be a two-year process to

start on Europe Day, 9th May 202036. The European Parliament published the
main outcome its working group on the Conference on 19 December 2019
endorsing the proposal. Crucially, the Parliament contended that the
Conference should be a process ultimately designed to lead toward treaty
changes in the EU.37
Delays related to the Covid-19 pandemic meant that it was June 2020 before
the Council agreed its position on the Conference on the Future of Europe,
stressing the importance of citizen and stakeholder engagement, which paves
the way for the opening of discussions with the Commission and the European
Parliament. In light of the pandemic, the Council maintained that the conference
should be launched as soon as the epidemiological conditions allow for it and
should focus on how to develop EU policies over the medium and long term in
order to tackle more effectively the challenges facing Europe, including the
economic repercussions of the COVID-19 pandemic and lessons learned from
the crisis.38
The Joint Declaration on the Conference of the Future of Europe was signed
by the European Parliament, European Commission and Council in March
2021. The Conference is under the authority of all three institutions, acting as
a Joint Presidency, supported by an Executive Board and a Common
Secretariat. The Conference is expected to reach conclusions and provide
guidance on the future of Europe by Spring 2022.
30. Recommended Reading

o Department of Foreign Affairs White Paper on the Lisbon Treaty, 2009
available at www.lisbontreaty.ie;
o An English version of the decision of the German Federal Constitutional
Court in respect of the Treaty of Lisbon can be accessed at;
http://www.bundesverfassungsgericht.de/entscheidungen/es20090630
_2bve000208en.html;
o Wyatt and Dashwood, European Union Law (6th ed., Hart Publishing,
2011,) chapter 1;
Palgrave Macmillan, 2017); chapters 1–7;
o Lenaerts and Van Nuffel, Constitutional Law of the European Union (6th
ed., Intersentia, 2017), chapters 1 and 3;
35 Ursula Von der Leyen “A Union that strives for more - My agenda for Europe- Political
Guidelines for the Next European Commission 2019-2024.”
36 Shaping the Conference on the Future of Europea, COM (2020) 27 final.
37 Fabbrini, F, “The Conference on the Future of Europe A New Model to Reform the EU?” DCU
Brexit Institute Working Paper Series No 12 / 2019.

38 Press Release 433/20 24/06/2020 Conference on the Future of Europe - Council agrees its
position, 24th June 2020.

o Foster, Foster on EU Law (7th ed., Oxford University Press, 2019),
chapter 1;
o Chalmers et al, European Union Law, Text and Materials (Cambridge
University Press, 2008), Chapter 1.
o De Witte, “The European Treaty Amendment for the Creation of a
Financial Stability Mechanism”, European Policy Analysis, 2011:6, 1
(www.sieps.ie)
o Barnard, C., “The practicalities of leaving the EU”, EL Rev 2016,
41(4),484-486
o Biondi, A., Birkinshaw, J., Kendrick, M., “Brexit: The Legal Implications"
(Wouters Kluwer, European Monographs, 2019).
o Fabbrini, F, “The Conference on the Future of Europe A New Model to
Reform the EU?” DCU Brexit Institute Working Paper Series No 12 /
2019.

Chapter 2
The EU Institutions
1. Required Reading
Cambridge University Press, 2019), chapters 2 and 4;
University Press, 2020), chapter 3;
o Title III TEU and Part VI TFEU.
2. Introduction
2.1 History
The original institutional arrangements set up under the ECSC Treaty have
changed considerably in the intervening time. The ECSC established a tripartite
system of political institutions which were a mix of supranational and
intergovernmental elements, comprising the Council of Ministers, the
Commission (at that time called the High Authority) and the Parliament (at that
time called the Assembly). This tripartite political institutional structure has been
maintained but there have been considerable modifications to the institutions
themselves and to the balance of power between the institutions. In addition,
there was a fourth institution, the Court of Justice.
The founding Treaties (ECSC, EEC and Euratom) established a separate set
of institutions for each Community. While a Convention signed at the same time
as the EEC and Euratom Treaties meant there had always been only one
Assembly and one Court of Justice common to the three Communities, at one
time there were three Councils and three Commissions, one for each
Community. In 1965, the Merger Treaty rationalised the institutional structure
and established one Commission and one Council for the three Communities.
This Treaty entered into force on July 13, 1967.
Since then, the four institutions (Commission, Council, Parliament and Court)
serve all three Communities. A fifth official institution was added by the Treaty
on European Union: the Court of Auditors. When the Lisbon Treaty entered into
force, the European Council (which previously operated outside the institutional
structure) and the European Central Bank became institutions in the full sense,
meaning that there are currently seven institutions.
2.2 The Institutional Structure
In the Lisbon Treaty, seven institutions are provided for: the European Council,
the Council, the Commission, the European Parliament, the Court of Justice,
the Court of Auditors, and the European Central Bank. These institutions serve
the EU into which the EC was subsumed by the Lisbon Treaty, and Euratom,

the ECSC having expired in 2002. Article 13(1) TEU1 provides that “The Union
shall have an institutional framework”. Article 13(1) TFEU lists the EU’s
institutions:
[T]he European Parliament, the European Council, the Council, the

European Commission [referred to as the Commission], the Court of
Justice of the European Union, the European Central Bank and the
Court of Auditors.
Article 13(2) TEU2 provides that “each institution shall act within the limits of
power conferred on it by the Treaties.” Article 13(3) TEU provides that “the
provisions relating to the European Central Bank and the Court of Auditors and
detailed provisions on the other institutions are set out in the Treaty on the
functioning of the European Union.”
Article 13(4) TEU3 provides that the European Parliament, the Council and the
Commission shall be assisted by an Economic and Social Committee and a
Committee of the Regions acting in an advisory capacity.
In addition to the seven exiting institutions and the two advisory bodies just
mentioned, there are a number of other important bodies created by the
Treaties. These include the European Investment Bank.
This chapter will provide an overview of the political institutions and of the Court
of Justice. An examination of the Court of Auditors and the European Central
Banks is beyond the scope of this course.
2.3 The Structure of the Treaty Provisions on the Institutions
Part III of the TEU, apart from setting the EU’s institutional framework (in Article
13 TEU), contains a single key provision on each of five of the seven
institutions, one on each of the four political institutions: the European
Parliament, the European Council, the Council and the Commission, and one
on the Court of Justice of the European Union. In addition, Article 18 TEU
concerns the post of the High Representative of the Union for Foreign Affairs
and Security Policy.
Part VI of the TFEU contains more detailed provisions in respect of each of the
five institutions together with detailed provisions on the remaining two
institutions: the European Central Bank and the Court of Auditors. In this
chapter the four political institutions and the Court of Justice will be explored.
3. The Political Institutions

The EU institutions cannot be described along the traditional separation of
powers doctrine into executive, legislative, administrative and judicial functions.
The political institutions share these functions. Post-Lisbon, the provisions
governing the institutions are found in Title III of the TEU and Part Six of the
TFEU. Instead, as is very neatly summarised by Wyatt and Dashwood, the
1 Ex Article 3 TEU.
2 Ex Article 7 EC.
3 Ex Article 7(2) EC.

constitutional system represents a pull between supranationalism and
intergovernmentalism.4
Foster’s explanations for intergovernmentaliam and supranationalism are

notweworthy:
Intergovernmentalism is the normal way in which international

organisations work, the decisions of which require unanimity and are
rarely enforceable; if enforceable, they are usually only so between the
signatory states and not the citizens of those states.
Supranationalism describes the fact that decision-making is made at a

new and higher level than that of the member states themselves and
that such decisions replace or override national rules.5
The compromise in the EU between intergovernmentalism and

supranationalism is achieved through an inter-institutional balance in the
treaties.6 It is important to understand that each institution serves its own
interests, which can lead both to conflict with Member States, but also within
the institutions themselves. For example:
• The European Parliament represents the citizens of the EU

• The Commission represents the EU interest as “Guardians of the
Treaties.”
• The Council and European Council represent the Member States
(note this is not always in line with the citizen’s interest!).
When the powers of the European Parliament or the Commission are increased
this is seen as a move towards supranationalism. Likewise, when unanimity
voting in the Council decreases (in favour of Qualified Majority Voting thereby
allowing measures to pass without the accord of all 27 Member States), this is
regarded as a move towards supranationalism. When the powers of the
Council or European Council increase, this tends towards
intergovernmentalism.
4. The European Parliament (EP)
4.1 Treaty Provisions
Article 14 TEU and Articles 223-234 TFEU7 govern the European Parliament.
4.2 History
As originally established in the founding Treaties (ECSC, EEC and Euratom

Treaties) it was first called an Assembly. The Assembly was established
pursuant to the ECSC Treaty and was shared with the EEC and Euratom on
their foundation. Initially members were nominated by national legislatures.
The term “Parliament” was used by its members from 1962.8 It continued to be
4 For more on this, see Wyatt and Dashwood (6th ed.), at 66.
6 See further Wyatt and Dashwood (6th ed.), at 66.
7 Ex Articles 189-201 EC.
8 Resolution of March 30, 1962, OJ 1962 C1045.

referred to in Council acts as the Assembly until its name was officially changed
in the Treaties by the SEA in 1986.
Agreement was reached in 1976 that the European Parliament would be

directly elected.9 The first direct elections were held in 1979 and are held at
five yearly intervals.10 The most recent elections were in 2014. It is the only EU
institution to be directly elected. It is one of the largest democratic assemblies
in the World.
The European Parliament has undergone radical change, both in its nature to
a body elected by direct universal suffrage, and in its powers. In the founding
Treaties, its powers were described as “advisory and supervisory” but the EP
has acquired greater powers over time, particularly in the budgetary and
legislative spheres of the EU.
A fixed seat for the European Parliament has proved a vexed question.
Currently the European Parliament is required to meet in plenary session in
Strasbourg but also meet in Brussels, although its Secretariat is based in
Luxenbourg and MEPS commute to their national constituencies.
4.3 Composition of the European Parliament
The European Parliament is intended to represent the peoples of Europe.

Article 10(2) TEU provides; “Citizens are directly represented at Union level in
the European Parliament.” The EU has approximately 508 million citizens.
On composition, Article 14(2) TEU provides:
The European Parliament shall be composed of representative of the

Union’s citizens. They shall not exceed seven hundred and fifty in
number, plus the President. Representation of citizens shall be
degressively proportional, with a minimum threshold of six members per
Member State. No Member State shall be allocated more than 96.
The European Council shall adopt by unanimity, on the initiative of the
European Parliament and with its consent, a decision establishing the
composition of the European Parliament, respecting the principles
referred to in the first sub-paragraph.
Article 14(3) TEU sets out their term of office the method of voting for Members
of the European Parliament (“MEPs”):
The members of the European Parliament shall be elected for a term of

five years by direct universal suffrage in a free and secret ballot.
The Lisbon Treaty fixed the number of members of the European Parliament
(MEPs) at no greater than 751 including the President. As the Lisbon Treaty
was not in force at the time of the 2009 elections, the elections were carried out
under the pre-existing system, under which Ireland had 12 MEPs and there was
a total number of 754 MEPs prior to Croatia’s accession in July 2013, following
which there were 766 MEPs. Following the 2014 elections the number of MEPs
9 Council Decision 76/787 OJ 1976 L 278/1 to which was attached an Act concerning the
election of the representatives of the Assembly by direct universal suffrage.
10 Article 14(3) TEU.

was 751. Ireland had 11 MEPs, Germany 96, France 74, UK 73, Italy 73, Spain
53, Poland 51, and each of Cyprus, Estonia, Luxembourg, and Malta 6.11
Based on an EP proposal in February 2018, the European Council adopted in

June 2018 a decision on the composition of the European Parliament. It sets
out the number of representatives in each member state to be elected to the
European Parliament for the 2019–2024 parliamentary term.
A new composition now applies following the withdrawal of the United Kingdom
(numbers have reduced from 751 to 705 MEPs).
27 seats have been re-allocated as follows: France (+5), Spain (+5), Italy (+3),
Netherlands (+3), Ireland (+2), Sweden (+1), Austria (+1), Denmark (+1),
Finland (+1), Slovakia (+1), Croatia (+1), Estonia (+1), Poland (+1) and
Romania (+1). No member state has lost any seats.
Parliament representation is not proportionate to the population in the EU—the

larger States have fewer seats per head of population than the smaller States,
i.e., smaller States are over-represented by comparison to the larger States.
This is not consistent with the traditional democratic concept of “one person
one vote”, with each vote being of equal value, rather it is known as the principle
of degressive proportionality.
Article 223 TFEU provides for the drawing up of a proposal for elections by
direct universal suffrage in accordance with a uniform procedure in all Member
States.
Until a uniform electoral system is established, each Member State is free to

choose its electoral system for the European Parliament subject to the
requirement that it must be on the basis of proportional representation.12
Article 14(4) TEU provides:
The European Parliament shall elect its President and its officers from
among its members.
The President of the EP is elected for a two-and-a-half-year period. The current

President is Italian MEP, David Maria Sassoli, who was elected in July 2019 at
the first sitting of the Parliament since the European Elections in May 2019. An
Irish MEP, Pat Cox was President from 2002–2004. There are also 14 Vice-
Presidents for the same term.
EP Rules of Procedure provide that the President is to direct all the activities of
the EP and of its bodies.
A Bureau of the President and the 14 Vice Presidents deal with routine
organisational matters, such as drawing up draft estimates.
The Conference of Presidents (made up of the President and the chairmen of

the political groups) has responsibility for non-routine organisation matters
including arranging the EP’s work programme.
11 See http://www.europarl.europa.eu/meps/en/map.html.
12 See Decision 76/787 as amended by Decision 2002/772.

Much EP work is done in Committees and there are 20 Standing Committees
dealing with areas such as foreign affairs, budgets, EMU, Citizens’ Freedoms
and Rights, Agriculture and Rural Development and Petitions.
The seat of the European Parliament is somewhat controversial as it sits in

Strasbourg once a month for Plenary sessions, yet, its Secretariat is based in
Luxembourg and the majority of its meetings (including six Plenary sessions)
take place in Brussels.
MEPS do not sit according to country but according to groupings. There are
seven political groupings currently:
o EPP Group of the European People's Party (Christian Democrats) ((in

which Fine Gael MEPs sit);
o S&D Group of the Progressive Alliance of Socialists and Democrats (in
which Labour MEPs sat);
o ECR - European Conservatives and Reformists,
o Renew Europe – formerly known as the Alliance of Liberals and
Democrats for Europe - in which Fianna Fáil MEPs sit );
o GUE/NGL Confederal Group of the European United Left/Nordic Green
Left (in which Sinn Féin MEPs and Luke Ming Flanagan MEP, Clare
Daly MEP and Mick Wallace MEP sit) ;
o Greens/EFA (European Free Alliance) (in which Green Party MEPs sit);
o EFDD - Europe of Freedom and Direct Democracy
o NI - Non-attached members
Article 232 TFEU governs the European Parliament’s Rules of Procedure

governing internal organisational and operational rules.
MEPs are also subject to a Protcol No. 7 of the Treaty on the privileges and
immunities of the European Union. Article 9 thereof pertains to Members of the
European Parliament.13
13
In Junqueras Vies (Case C-502/19, EU:C:2019:1115) the Spanish Supreme Court sought to
clarify the interpretation of Article 9 of Protocol (No 7) on the privileges and immunities of the
European Union following a challenge by an imprisoned Catalonian politician to an order
refusing to grant him special authorisation to leave prison. He had been placed in provisional
detention prior to those elections in criminal proceedings brought against him for his
participation in the organisation of the referendum on self-determination in Catalonia. He
requested that authorisation to discharge a formality required by Spanish law following the
declaration of results, namely, swearing or pledging to abide by the Spanish Constitution before
a central electoral board, and subsequently to travel to the European Parliament in order to
take part in the constitutive session of the new legislative term. The Court held, inter alia, that
a person who is elected to the European Parliament acquires the status of Member of
Parliament by virtue of and from the time of the declaration of the election results, with the result
that that person enjoys the immunities guaranteed by Article 9 of the Protocol. The election of
an MEP constitutes an expression of the constitutional principle of representative democracy,
the scope of which is defined by EU law itself. It follows from Article 343 TFEU that the European
Union, and thus its institutions and their members, must enjoy the immunities necessary for the
performance of their tasks and serves to ensure the right to stand as a candidate at elections,
guaranteed in Article 39(2) of the Charter, by enabling every Member—from the time the
Member is declared elected and irrespective of whether or not possible formalities required by
national law have been discharged—to participate in the constitutive session of the Parliament
without being impeded as regards travel.

4.4 Powers of the European Parliament
The European Parliament shall, jointly with the Council, exercise

legislative and budgetary functions. It shall exercise functions of
political control and consultation as laid down in the Treaties. It shall
elect the President of the Commission.
The European Parliament’s legislative powers have grown over successive

Treaties, from being virtually non-existent at first, to now exercising legislative
power jointly with the Council in many areas. It is important to note that the
European Parliament also exercises budgetary powers and supervisory
powers.
4.5 Budgetary Powers of the European Parliament14
The European Parliament together with the Council has strong powers
regarding the EU budget. This power stems from the Budgetary Treaties in
1970 and 1975 when the European Parliament was for the first time afforded
significant budgetary powers. The EP has a strong role in relation to non-
compulsory expenditure. In 1975 the European Parliament was given the
power to reject the budget in its entirety15. Following the Lisbon Treaty, the
European Parliament enjoys full parity with the Council in adopting the budget.
The budgetary procedure is in Article 314 TFEU. Expenditure limits are set by
the Council after obtaining the consent of the EP.16
4.6 Legislative Powers of the European Parliament
The legislative power of the European Parliament varies depending on the

legislative procedure used and this is determined by the policy area in which
legislation is to be enacted.
The most important legislative procedure is the Ordinary Legislative

Procedure. In this procedure the European Parliament has co-equal power to
the Council and can ultimately veto legislation (this was formerly known as “co-
decision”). Under the Consultation Procedure the European Parliament only
has a right to be consulted. Under the Consent Procedure the consent of the
European Parliament is required.
One must remember relevant CJEU case-law on the Parliament, e.g., if the
Treaty specifies consultation with the EP and the Council acts without
consulting the EP, the measure may be annulled (Roquette Frères v. Council
[1980] ECR 3333 (Case C138/79)).
If the text of a proposal is amended substantially after consultation, the Council

must re-consult the EP (Parliament v. Council (Cabotage II) [1992] ECR I 4593
(Case C-65/90)).Conversely, the Council is not required to re-consult the
14 See France v. Parliament C-73/17, EU:C:2018:787, where the Grand Chamber held that the
European Parliament may exercise some of its budgetary powers in Brussels, instead of
Strasbourg, if that is required for the proper functioning of the budgetary procedure.
15 Article 34 TFEU.

Parliament where the final version of the contested directive differs from the
proposal upon which the Parliament had been consulted only because the final
text constitutes a simplification of the proposal and where the substance has
been fully preserved RPO EU:C:2017:174 (Case C-390/15).
The EP also has an obligation to give its opinion within a reasonable time
(Parliament v. Council (General Tariff Preferences) [1995] ECR I 693 (Case C-
65/93)).
The European Parliament did not always enjoy the legislative power it enjoys
today. Prior to the Single European Act, the EP only had the right to be
consulted about legislation. The Single European Act introduced two new
legislative procedures: Co-operation (now defunct but an important stepping-
stone to increased legislative power of the EP,) and Assent (now called
“Consent”, which afforded the EP a veto, but is rarely used).
The Maastricht Treaty introduced Co-decision (now renamed Ordinary

Legislative Procedure under Lisbon). The use of the procedure was expanded
by the Treaty of Amsterdam, the Treaty of Nice and again in the Treaty of
Lisbon so that it now is the usual procedure by which legislation is adopted.
The gradual increase in the EP’s legislative powers from the founding Treaties
to the Treaty of Lisbon is seen as a move away from intergovernmentalism and
towards supranationalism in the EU political system.
It is noteworthy that the EP can never enact legislation acting alone.
The European Parliament does not have a right to initiate legislation, but
pursuant to Article 225 TFEU the EP can “request the Commission to submit
any appropriate proposal on the matters on which it considers that a Union act
is required for the purpose of implementing the Treaties.” Further, the
European Parliament has the power to suggest amendments to legislative
proposals of the Commission.
Ordinarily, the EP acts by an absolute majority of votes cast. This is provided

for in Article 231 TFEU, which also provides that the rules of procedure shall
determine the quorum.
4.7 Supervisory Powers of the European Parliament
The European Parliament has considerable supervisory powers. Chalmers

notes that the EP “has a variety of tools to hold the other EU institutions to
account. It has powers of appointment and dismissal, powers of litigation and
powers of enquiry.”17
4.8 Appointment
The EP plays a significant role in respect of its approval of the Commission.
Pursuant to Article 17(7) TEU, it must elect the President of the Commission
after his nomination by the European Council.
Following the EP elections in 2014, the President of the European Commission,

Jean-Claude Junker was confirmed by the EP. President Ursula von der Leyen

was confirmed by the EP in July 2019 and assumed her role on 1st December
2019. The first sentence of Article 17(7) TEU affords the EP a greater say in
determining the leader of the Commission than the European Council.
In addition, the College of Commissioners, the President of the Commission

and the High Representative of the Union for Foreign Affairs and Security
Policy are subject as a body to a vote of consent by the EP.18 The EP
subjects all prospective Commissioners to questioning and changes of
nominee Commissioners have been secured in the past.
Pursuant to Article 228 TFEU, the EP is empowered to elect a European

Ombudsman to investigate complaints from citizens concerning instances of
maladministration in the activities of the Community institutions or bodies
(except the Courts acting in their judicial role). The Ombudsman conducts
investigations and sends a report to the EP and the institution under
investigation.
4.9 Dismissal
The EP can apply to the Court of Justice to have the European

Ombudsman dismissed if he no longer fulfils the conditions required for the
performance of duties or if he/she is guilty of serious misconduct.19
The European Parliament has power to censure and require the resignation
of the Commission en bloc (Article 18(8) TEU and Article 234 TFEU).
While the Commission has to date not been censured by the EP, the (at least
implicit) threat of censure in 1999 led to the resignation the Santer Commission
en bloc following an investigation by a Committee of Experts into claims of fraud
and mismanagement by the Commission.
The EP does not have the power to censure individual Commissioners. An

agreement between the Parliament and the Commission20 provides that where
the EP expresses lack of confidence in a Commissioner, the President of the
Commission will seriously consider whether he should ask the member to
resign. This agreement took on added significance in light of the ToN
amendment which empowered the President of the Commission, with the
approval of the College of Commissioners, to require a Commissioner’s
resignation. The powers of the President of the Commission were increased by
the Lisbon Treaty, as the approval of the College of Commissioners prior to
seeking the resignation of an individual Commissioner is no longer necessary.
According to Article 17(6) TEU, “[a] member of the Commission shall resign if
the President of the Commission so requests.”
4.10 Powers of Inquiry
The EP monitors the activities of the Commission through the asking of written
and oral questions.21 The European Parliament can establish temporary
committees of inquiry to investigate the other institutions or bodies.22 Article
18 See the third sub-paragraph of Article 17(7) TEU.

20 [2001] OJ C121/122.
21 Article 230 TFEU

233 TFEU requires the Commission to submit an annual report to the EP.
While the Treaty does not oblige the Council to reply to questions from the EP,
it does so.
Post-Lisbon, the President of the European Council is required to report on

European Council meetings to the EP.23 Annual reports must be submitted to
the EP by the Commission, the Ombudsman, and the Central Bank.24 The
Commission, European Council, and the Council have a right to be heard by
the EP.25
Pursuant to Article 227 TFEU citizens have a right to petition the European
Parliament on EU matters.
4.11 Litigation
Under Article 263 TFEU, the European Parliament has unlimited locus standi
to bring annulment proceedings. It is a so-called “privileged applicant”. This will
be discussed in greater detail in a later chapter.
5. The European Council
The European Council is governed by Article 15 TEU and by Articles 235 -236
TFEU.
5.2 History
The European Council became a full institution of the European Union by virtue
of the Treaty of Lisbon.26 It has, however, been in existence since 1974 when
a decision was taken to hold meetings at the highest political level, involving
heads of State of Government of the Member States. The rationale for the
establishment of the European Council was to provide a focus for authority at
the highest political level to plan the development of the Communities, and later
the Union. There had been meetings of the group on an irregular basis in the
1960s. It is an immensely important political player in the EU, with a far-
reaching influence. It defines the general political direction and priorities of the
EU.
5.3 Composition
The European Council shall consist of the Heads of State or

Government of the Member States, together with its President and the
President of the Commission. The High Representative of the Union for
Foreign Affairs and Security Policy shall take part in its work. [Emphasis
added.]

24 Article 233 TFEU, Article 228 TFEU and Article 284(3) TFEU.
26 Article 13 TEU.

Both the post of the President of the European Council and the post High
Representative of the Union for Foreign Affairs and Security Policy are new
posts created by the Treaty of Lisbon.
Article 15(3) TEU provides that the Council shall meet twice every six months.
Further, when the situation requires a meeting, it can be convened by the
President of the European Council. The European Council ordinarily takes
decisions by consensus27 but the Treaty provides for QMV in certain instances.
5.4 Functions
Article 15(1) TEU provides: “The European Council shall provide the union with
the necessary impetus for its development and shall define the general political
directions and priorities thereof. It shall not exercise legislative functions.”
While the European Council does not have power to legislate, various
provisions of the Treaty do give it power to take binding decisions, for example
as regards the allocation of MEPs in the European Parliament.
The President of the European Parliament addresses the European Council

annually. The agenda for European Council meetings is prepared by the
General Affairs Council. The Commission feeds into the agenda. The European
Council’s role has not substantially changed by the Lisbon Treaty. Except
where the Treaty provides otherwise, voting is by consensus.28 The Lisbon
Treaty provides for QMV in specific limited areas. Only the Heads of State/
Heads of Government vote.
Although the European Council was mentioned in the Treaties pre-Lisbon,

those references did little to explain its significance in the EU. [For more on the
roles and functions of the European Council, see the writings of Nugent.29]
Chalmers identifies five sets of powers enjoyed by the European Council.30

First, Constitution-making powers: in this category, Chalmers includes
making decisions about suspending membership and setting the criteria for
new membership. The European Council enjoys the power to institute Treaty
reform. The Lisbon Treaty provides for an ordinary revision method and a
simplified revision procedure.
Secondly, powers relating to organisation: in this category, Chalmers

includes determining the compositional structure of the European Parliament
and the Commission,31 the appointment of its own President, the President of
the Commission, the Commission, the High Representative of the Union for
Foreign Affairs and Security Policy, and the Executive Board of the Central
Bank.32 Some of these appointments involve other institutional actors.
Thirdly, Chalmers identifies informal agenda-setting powers.
Fourthly, problem-solving powers: there are express provisions in the

Treaties including Article 31(2) TEU in the field of Common Foreign and

29 Nugent, at 182.
30 Chalmers (2nd ed.), at 76- 78.
31 Article 14(2) and 17(5) TEU.
32 Articles 15(5) 17(7) and 18(1) TEU and Article 283(2) TFEU.

Security policy, where there is provision for QMV, a Member State may refer
the matter to the European Council. Also, in Article 82(3) and 83(3) TFEU a
Member State may refer a legislative proposal to the European Council if it
affects important aspects of its social security system or fundamental aspects
of its criminal justice system. More generally, the membership of the European
Council means it has the authority to resolve impasses.
Fifthly, in Common Foreign and Security Policy, the European Council

defines the strategic objectives and interests of CFSP and sets out guidelines.33
5.5 European Council is Subject to Judicial Review
Pursuant to Articles 263 and 265 TFEU the European Council is now post-
Lisbon subject to review by the Court of Justice of the EU.
5.6 Report to Parliament
Lisbon also introduced the requirement that the President of the European
Council present a report to the European Parliament after each of the meetings
of the European Council.34
5.7 President of the European Council
The Lisbon Treaty provided for the establishment of a new role of President of
the European Council, to be elected by the European Council by QMV for a
two-and-a-half-year period, renewable once. Herman Von Rompuy, a former
Belgian Prime Minister, was the first President of the European Council. He
was appointed in December 2009 and reappointed in June 2012. Donald Tusk,
the former Polish Prime Minister, succeeded him on December 1, 2014. He
was succeeded in 2019 by former Belgian PM Charles Michel.
Article 15(6) TEU sets out the role of the President of the European Council
and provides:
The President of the European Council:

(a) Shall chair it and drive forward its work;
(b) Shall ensure the preparation and continuity of the work of
the European Council in cooperation with the President of
the Commission, and on the basis of the work of the General
Affairs Council;
(c) Shall endeavour to facilitate cohesion and consensus within
the European Council;
(d) Shall present a report to the European Parliament after each
of the meetings of the European Council.
The President of the European Council shall, at his level and in that
capacity, ensure the external representation of the Union on issues
concerning its common foreign and security policy, without prejudice to
the powers of the High Representative of the Union for Foreign Affairs
and Security Policy.
33 See Title V, TEU.

34 Article 15(6)(d) TEU.

Article 15(6) TEU also provides that the President of the European Council shall
not hold a national office.
5.8 The High Representative of the Union for Foreign Affairs and
Security Policy
The High Representative of the Union for Foreign Affairs and Security Policy
takes part in the work of the European Council.35 This post was created by the
Lisbon Treaty and Mr Josep Borrell, a former Spanish Foreign Minister,
currently holds the role. She will soon be replaced as negotiations continue for
the allocation of roles under the new Commission, which will take up office in
November 2019. The position of High Representative of the Union for Foreign
Affairs and Security Policy is an unusual role in that the High Commissioner is
involved in three seperate EU institutions:
• European Council,
• The Council (chairing the Foreign Affairs Council).
• The Commission (one of the Vice-Presidents of the Commission,
leading a team of Commissioners).
The role of the High Commissioner is to conduct the EU’s foreign and security
policy (CFSP). The purpose of this role is to make EU foreign policy more
consistent and coherent. The appointment of the High Representative together
with the President of the Commission and the other Commissioners is subject
as a body to a vote of consent by the European Parliament.36
Article 18 TEU sets out the particularities of the role:
1. The European Council, acting by a qualified majority, with the

agreement of the President of the Commission, shall appoint the
High Representative of the Union for Foreign Affairs and Security
Policy. The European Council may end his term of office by the
same procedure.
2. The High Representative shall conduct the Union’s common foreign
and security policy. He shall contribute by his proposals to the
development of that policy, which he shall carry out as mandated by
the Council. The same shall apply to the common security and
defence policy.
3. The High Representative shall preside over the Foreign Affairs
Council.
4. The High Representative shall be one of the Vice-Presidents of the
Commission. He shall ensure the consistency of the Union’s
external action. He shall be responsible within the Commission for
responsibilities incumbent on it in external relations and for
coordinating other aspects of the Union’s external action. In
exercising these responsibilities within the Commission, and only for
these responsibilities, the High Representative shall be bound by
Commission procedures to the extent that this is consistent with
paragraphs 2 and 3.
The High Representative is assisted by the European External Action Service

(EEAS).

36 Article 17(7) TEU, third sub-paragraph.

6. The Council
6.1 Treaty Articles

The Council is governed by Article 16 TEU and Article 237- 243 TFEU.
The Council is the institution which represents the Member States’ interests.
This institution was previously called the Council of Ministers. It is separate
from and should not be confused with the European Council. It was one of the
original institutions of the founding Treaties.
6.2 Composition of the Council
The Council shall consist of a representative of each Member State

at ministerial level, who may commit the government of the Member
State in question and cast its vote.
Members of the Council are politicians elected in their respective Member

States but not directly elected to the Council.37 The seat of the Council is
Brussels.
Pursuant to Article 237 TFEU, the Council shall meet when convened by its
President, on its own initiative, at the request of one of its members or at the
request of the Commission. Council meetings are arranged by subject matter
and different Ministers represent a State depending on the subject matter. The
Commissioner with responsibility for the subject matter also attends the
meetings.
For example, Agriculture Ministers will sit in the Agriculture and Fisheries
Council (AGRIFISH). It is possible for more than one Minister from a Member
State to attend a Council if the subject matter crosses Ministerial boundaries.
Meetings are regulated by the Council’s Rules of Procedure (Council Decision
2006/683/EC [2006] OJ L 285/47). Prior to the Lisbon Treaty the Council sat
in nine Configurations.38
Article 16(6) TEU outlines rules relating to the different configurations, adopted
in accordance with Article 236 TFEU. :
The Lisbon Treaty expressly provides for a General Affairs Council and a
Foreign Affairs Council. The role of the General Affairs Council is
strengthened under the Lisbon provisions. (See Article 16(6) TEU).
In addition to the two configurations expressly provided by the Treaty, there

are eight other configurations, post-Lisbon:
• Economics and Financial Affairs Council (Ecofin) - regularly

attended by Finance Ministers, dealing with budget, EMU and
financial markets.
37 Article 10(4) TEU at the second sub-paragraph provides that “Member States are represented
in the European Council by their Heads of State or Government and in the Council by their
governments, themselves democratically accountable to their national Parliaments, or to their
citizens.”
38 In the 1990s there had been 22 different configurations.

• Justice and Home Affairs.
• Sectoral configurations, e.g., Councils on Agriculture and Fisheries;
• Competitiveness (internal market, industry, research and space);
• Employment, Social Policy, Health and Consumer Affairs;
• Environment;
• Education Youth, Culture and Sport
• Transport, Telecommunications and Energy.
The Minister from each Member State with responsibility for the specific subject
matter will attend the relevant Council.
The perception exists that this number of configurations means decision-

making is fragmented. The strengthening of the General Affairs Council is
aimed at resolving the fragmentation difficulties.
6.2.1 The Euro-Group

Per Protocol No. 14 to the TFEU, a protocol added at Lisbon, the Ministers of
the Member States whose currency is the Euro shall meet informally. The
Commission may take part in meetings and the European Bank is required to
be invited to take part in such meetings. This informal group is known as the
Euro-Group. A president is elected for two and a half years by a majority of the
Member States whose currency is the Euro. Irish Minister for Finance Paschal
Donoghue currently holds this role.
6.3 Presidency of the Council
Prior to Lisbon, the Presidency of the Council was held by each Member State
for a six-month period on a rotating basis.
Now, the Presidency of the Council rotates between groups of three Member
States for 18 months at a time (“trios”) and the configurations of the Council are
chaired in turn by each Member State for a term of six months. The current trio
comprises Germany, Portugal, and Slovenia, with Slovenia holding the
Presidency from July–December 2021.
The duties of the Presidency include arranging and chairing Council meetings
and setting the agenda for them and representing the Council before other
institutions. Every 18 months, the three Presidencies due to hold office prepare
a draft programme of activities in consultation with the Commission. Ireland
held the rotating Presidency of the Council between January and June 2013.
Article 16(7) TEU and Article 240 TFEU provide that a committee consisting of
the Permanent Representatives of the Member States (the Committee of
Permanent Representatives) shall be responsible for preparing the work of the
Council and for carrying out tasks assigned to it by the Council. This body is
known as COREPER.
The Council is assisted by a General Secretariat, an independent body of civil

servants.
Parts of Council meetings are open to the public. Article 16 (8) TEU provides:
The Council shall meet in public when it deliberates and votes on a draft
legislative act. To this end, each Council meeting shall be divided into

two parts, dealing respectively with deliberations on Union legislative
acts and non-legislative acts.
6.4 Decision-making in the Council
It is necessary to examine the Treaty provision under which a measure is being

adopted to ascertain which voting system applies. There are three types of
votes, simple majority for procedural matters, Qualified Majority Voting used in
many policy areas, and Unanimity, which is used in sensitive areas. In addition,
the Treaty contains specific provisions by which a requirement for unanimity in
the Council can be converted to QMV without the need for a Treaty
amendment. These provisions are called passerelle provisions. The different
voting procedures are used in the context of legislative decision-making but
also for other decision-making by the Council.
Article 16(3) TEU provides that “[t]he Council shall act by qualified majority
except where the Treaty provides otherwise.”
Article 16(8) requires the Council to meet in public when legislating.
6.4.1 Qualified Majority Voting

Qualified majority voting is a weighted voting system and requires a delicate
balance between individual States and reflecting population sizes of the larger
States. The gradual increase in QMV in the Council is seen as a move away
from intergovernmentalism towards supranationalism.
Under the Lisbon Treaty, the system of QMV in the Council has changed as
from 1 November 2014 to a double majority voting system, under which a
qualified majority will ordinarily consist of 55% (16) of the Member States
comprising at least 65% of the population of the EU.39 A blocking minority
should comprise at least four States.40 Where a proposal is not initiated by the
Commission or the High Representative for Foreign Affairs and Security Policy,
72% (21) of Member States, representing least 65% of the population of the
EU, must support the proposal.41 There are transitional provisions relating to
the definition of QMV applicable up to October 31, 2014 and from November 1,
2014 to March 31, 2017.42 Article 238(3) TFEU is concerned with QMV in cases
where not all Member States participate in voting.
Currently, pending the introduction of the Lisbon changes in 2014, a triple

majority system is in place, requiring the agreement of the overall majority of
Member States or two-thirds of the Member States where the Council is not
acting on a proposal of the Commission. Now that there are 27 states, the
proposal must have 260 out of 352 weighted votes, and where a Member State
requests the votes in favour must represent 62% of the population of the EU.43
Under this system Ireland, like Denmark, Finland and Croatia, has seven votes
(was three of 87) whereas the large States Germany, France, the UK, and Italy
have 29 votes each (was 10 of 87). Malta has the least number of votes (three).
Poland, in particular, was unhappy with the Lisbon double majority system and

40 Article 16(4).
42 Article 16(5) TEU and a Protocol on transitional arrangements.
43 Approx 315 million of 508 million.

as a compromise there is a transitional arrangement up to March 2017 where
a Member State can ask for the current system to be applied.
The details of QMV are contained in Protocol 36 on Transitional Provisions,

Title II, and qualified by Declaration 7 on Articles 16(4) and 238 TFEU, both of
which are attached to the Treaties.
6.4.2 Simple Majority

Article 238(1) TFEU also provides for the possibility of the Council to act by a
simple majority, a majority of its component members, i.e., 14 (out of 27), with
each Member State having one vote. This voting system is used in few areas
in respect of procedural issues.
6.4.3 Unanimity
The other possible voting mechanism in the Council is unanimity44, where each
Member State has a veto. Unanimous voting requirements are still common.
An example where unanimity is required is Article 19 TFEU to enact measures
outlawing different forms of discrimination. A Member State which abstains
does not prevent the other Member States from agreeing a measure. It is
obviously more difficult to achieve agreement in areas where each Member
State exercises a veto.
6.5 Powers of the Council
The Council shall, jointly with the European Parliament, exercise

legislative and budgetary functions. It shall carry out policy-making
and coordinating functions as laid down in the Treaties.
Under the EU Treaties, the Council has the power of final legislative decision
in many areas. Depending on the procedure used, the EP has more or less
involvement in legislative decision making. The Council has to vote approval
of virtually all legislative proposals. The Council has the power to delegate
decision making to the Commission (Article 290 TFEU) and the power to
request the Commission to undertake studies or submit legislative proposals
(Article 241 TFEU).
The Council determines the salaries and allowances of the President of the
European Council, the President of the Commission, the High Representative
for Foreign Affairs and Security Policy, the Members of the Commission, the
Presidents, Members and Registrars of the Court of Justice of the European
Union and the Secretary General of the Council (Article 243 TFEU (ex Article
210 EC)). The Council can take the other institutions before the Court of Justice
of the European Union for failure to fulfil Treaty obligations (Articles 263 and
265 TFEU). The Council plays a major role, along with the EP, in the EU
Budget.45 Pursuant to Article 26(2) TEU the Council is mandated to frame the
Common Foreign and Security Policy and take decisions necessary for defining
it and implementing it on the basis of the guidelines of the European Council.
The Council has a role in opening and concluding international agreements
with third countries and international organisations.
44 See Article 238(4) TFEU.

45 Article 16(1) TEU and Article 314 TFEU.

7. The Commission
The Commission is viewed as the most “federal” of the EU institutions. This
results from its independence from direct national intervention. The
Commission is known as the watchdog or the guardian of the Treaties.
Pursuant to Article 250 TFEU,46 the Commission acts by a majority of its
Members. The Commission is the institution which represents the European
Union’s interests. As the Commission is independent of the Member States,
more power being afforded to the Commission is an indicator of
supranationalism over intergovernmentalism. Foster states, “[t]he Commission
is regarded as the most supranational institution of the EU, due largely to its
independence from direct national influences.”47
7.1 Treaty Articles
Articles 17 TEU and 244-250 TFEU48 govern the Commission.
7.2 Composition of the Commission
Commissioners are chosen “on the grounds of their general competence and
their independence must be beyond doubt”. The Commission is comprised of
one national from each Member State. Currently there are 27 Commissioners.
It had been envisaged that from 2014 the number of Commissioners would be
reduced to be equal to two-thirds of the number of Member States, with each
State nominating a Commissioner on a rotating basis premised on the principle
of equality of States.49 However, as a result of a decision taken by the European
Council in December 2008,50 one Commissioner from each Member State is to
be retained.51
Article 17(3) TEU is concerned with appointment of the Commission. The

Commission is appointed for a renewable term of five years. The Maastricht
Treaty brought the terms of the European Parliament (EP) into proximate
alignment. EP elections are held in June every five years in the years ending
4 and 9 and the Commission takes office 6 months after the EP elections. The
Commission is based in Brussels but also has offices, known as
Representations, in each Member State.
Commission Members are not representatives of Member States and are

required to act independently. Articles 17(3) TEU and 245 TFEU52 require
Commissioners to be completely independent in the exercise of their
duties. Commissioners may not engage in other occupations during their term
of office.53 The Commission is a collegiate body and is collectively responsible
for all decisions taken.

50 EU Council, Presidency Conclusions 11 and 12 December 2008, paragraph 2, EU Council
17271/1/08.
51 Article 17(3) TEU provided for the possibility of the European Council to take a decision on
the basis of unanimity to alter the number of Commissioners. This decision was taken before
the Treaty of Lisbon entered into force.

Since Lisbon, there is an exception to the independence criterion in that the
High Representative of the European Union for Foreign Affairs and
Security Policy has multiple hats as discussed above. (See Article 18(3)
TEU).
Pursuant to Article 250 TFEU,54 the Commission acts collectively by a

majority of its Members. The quorum is governed by the Commission’s Rules
of Procedure. It meets in private, and its deliberations are confidential.
7.3 Appointment of the Commission and President
Article 17 TEU as inserted by the Treaty of Lisbon, governs the appointment of

the Commission and its President. The European Council acting by QMV,
shall propose to the EP a candidate for the President. The candidate is
elected by the EP by a majority of its component members. The Council acting
by Qualified Majority Voting (QMV) and by common accord with the
President-elect nominates a proposed Commission in accordance with the
proposals of the Member States. The nominee Commission and President and
the High Representative of the Union for Foreign Affairs and Security Policy
are subject to a vote of consent by the EP.
The EP has shown itself willing to challenge suggested Commissioners, and in

both 2004 and in 2009 changes were effected. After EP approval, the entire
Commission is appointed by the European Council acting by QMV.55
Commissioners are appointed for a term of five years. Once appointed they
are allocated a portfolio by the President of the Commission and are thereafter
responsible for that subject area. Pursuant to Article 248 TFEU,56 the
responsibilities incumbent upon the Commission shall be structured and
allocated among its members by its President, in accordance with Article 17(6)
TEU. The President is empowered to reshuffle the allocation of responsibilities
during the Commission’s terms of office. Article 248 TFEU also provides that
the Commissioners shall carry out the duties devolved upon them by the
President under his authority. The current President of the Commission is
Ursula von der Leyen of Germany. Ireland’s current Commissioner is Mairead
McGuinness, who holds the Financial Stability, Financial Services, and the
Capital Markets Union portfolio.
Article 17(6) TEU57 affords the President a number of other important functions.
The Commission works under the political guidance of the President, who
decides on internal organisation, allocates responsibilities and is free to
reshuffle the allocation of responsibilities between Commissioners.
Commissioners carry out their tasks under the authority of the President. The
President may appoint a number of Vice-Presidents. The President does not
have the authority to appoint the High Representative of the Union for Foreign
Affairs and Security Policy. The High Representative is appointed by the
European Council with the agreement of the President of the Commission.58 A
similar procedure is necessary to seek the resignation of the High

55 Article 17(7), sub-paragraph 3.
57 Ex Article 217 EC as amended by the Treaty of Nice, which significantly expanded the powers
of the President.

Representative.59 The power of the President of the Commission has grown in
the 2000s. Chalmers suggests that the power of the President to hire and fire
Commissioners may impact on the independence of the Commission.60
Ursula Von der Leyen follows the tradition of her precedessor Jean-Claude
Juncker by organising her Commission cabinet in teams led by several Vice-
Presidents, focussing on key priorities such as the EU Green Deal, an
economy that works for people, an EU fit for the digital age, promoting the EU
way of life, a stronger Europe in the world, and a new push for Euroepan
democracy.61
As discussed previously, the EP is required to give its consent to the entire

College of Commissioners including the President and the High Representative
of the Union for Foreign Affairs and Security Policy. The EP conducts hearings
of the Commissioners-designate. Once the EP has given its consent, the
European Council appoints the Commission .62
7.4 Dismissal of the Commission
Article 17(8) TEU, post-Lisbon, provides that “[t]he Commission as a body, shall
be responsible to the European Parliament.” The Commission can be removed
en bloc by a vote of censure in the EP.63
The Court of Justice of the EU has the power under Article 247 TFEU,64 on the
application of the Council or the Commission (but not the EP) to compulsorily
retire a Commissioner for serious misconduct or where he or she no longer
fulfils the conditions required for the performance of his or her duties.
Article 17(6) TEU provides, “[a] member of the Commission shall resign if the
President of the Commission so requests.” In this respect, the powers of the
President of the Commission were increased by the Lisbon Treaty; previously
the President could only request a resignation after the approval of the College
of Commissioners had been obtained.65
7.5 The Powers and Functions of the Commission
The powers and functions of the Commission are set out in the Treaties, in
particular in Article 17(1) TEU66 which provides:
The Commission shall promote the general interest of the Union and
take appropriate initiatives to that end. It shall ensure the application
of the Treaties, and of measures adopted by the institutions pursuant to
them. It shall oversee the application of Union law under the control
59 Articles 17(6) and 18(1) TEU.

60 Chalmers (2nd ed), p 57.
61 Ursula Von der Leyen “A Union that strives for more - My agenda for Europe- Political
Guidelines for the Next European Commission 2019-2024.”

63 Article 18(80 TEU and Article 234 TFEU.
65 Since 2004, the President of the Commission had the power to fire individual Commissioners;
this power was not on a Treaty basis but rather was contained in the Code of Conduct which
Commissioners were required to sign prior to taking office.

of the Court of Justice of the European Union. It shall execute the
budget and manage programmes. It shall exercise coordinating,
executive and management functions, as laid down in the Treaties.
With the exception of the common foreign and security policy, and other
cases provided for in the Treaties, it shall ensure the Union’s external
representation. It shall initiate the Union’s annual and multiannual
programming with a view to achieving interinstitutional agreements.
[Emphasis added.]
Chalmers divides the powers of the Commission under four headings:
7.5.1 Legislative and Quasi-legislative Powers

The Treaty empowers the Commission to enact legislation acting alone in two
specific areas: State Aids67 and determining conditions under which EU
nationals may reside in a host EU Member State after having worked there.68
Article 290 TFEU provides, “[a] legislative act may delegate to the Commission
the power to adopt non-legislative acts to supplement or amend certain non-
essential elements of the legislative act. Chalmers describes this as the
delegation of “quasi-legislative powers to the Commission” and notes that it is
“widespread”.69
The Commission also has the power to enact EU-wide implementing

measures. Article 291(2) TFEU provides, “[w]here uniform conditions for
implementing legally binding Union acts are needed, those acts shall confer
implementing powers on the Commission ...” In March 2011, new “comitology
rules” entered into force defining how the Member States control the
Commissions implementing powers. There are two control procedures: an
examination procedure and an advisory procedure. Both procedures involve
Committees (hence “comitology”) composed of Member State representatives
and chaired by the Commission.
The Commission also plays an important role as mediator between Member

States to secure agreements in the Council.
7.5.2 Agenda-setting
The Commission’s agenda-setting powers are the second category set out by
Chalmers.70 Chalmers states that:
The Commission has responsibility for initiating the policy process in

a number of ways. It first decides the legislative programme for the
year. Secondly, in most fields, it has a monopoly over the power of
the legislative initiative. Thirdly it also has the power of financial
initiative. The Commission starts the budgetary process by placing a
draft Budget before the Parliament and the Council. Finally, the
Commission is responsible for stimulating policy debate more
generally. The most celebrated example of this was the White Paper on
the Completion of the Internal Market which set out an agenda and
timetable for completing the internal market by the end of 1992.

69 Chalmers (2nd ed), p 59.
70 Chalmers (2nd ed.), at 61-62.

The Commission is the initiator of legislation. Article 17(2) TEU provides:
Union legislative acts may only be adopted on the basis of a

Commission proposal, except where the Treaties provide otherwise.
Other acts shall be adopted on the basis of a Commission proposal
where the Treaties so provide.
Both the Council and the Parliament can request the Commission to
make a legislative proposal. The citizens’ initiative introduced by the
Lisbon Treaty71 means that a million citizens of a significant number of
Member States may invite the Commission to submit a legislative
proposal.
The Commission also has a power of financial initiative.72
7.5.3 Executive Powers

The Commission is responsible for collecting EU revenue. It is responsible for
overseeing spending of structural, social, and agricultural funds. It is
responsible for administering aid to third countries.
The Commission exercise a supervisory function to ensure that rules are

applied correctly by Member States. In policy terms the Commission plays an
important role in Agriculture and Competition.
Traditionally in external relations the Commission represented and acted on

behalf of the EU, subject to council approval in negotiations, e.g., with the World
Trade Organisation. The Commission had a negotiating role in respect of
agreements with external countries and/or groups of countries. The
Commission represented the EU in bodies such as the United Nations and the
Organisation for Economic Cooperation and Development.
Post-Lisbon, per Article 27(2) TEU, the High Representative for Union Foreign
Affairs and Security Policy will carry out some of these functions. She will
represent the EU in matters of Common Foreign and Security Policy.
The High Representative is assisted by a European External Action Service.73
The Commission is the point of contact between the EU and non-Member

States. The Commission plays an important role with regard to applications for
EU membership. The Commission investigates applicant States and submits
an opinion and recommendation to the Council. The Commission is tasked with
preparing an annual general report on the activities of the EU.74
7.5.4 Supervisory Powers

The Commission is regarded as the “Guardian of the Treaties”, or as
Chalmers terms it, “the conscience of the Union”. It is a law enforcer. The
Commission has the power to prosecute a Member State for failure to fulfil a
treaty obligation. (Article 258 TFEU75). he Commission also plays a role in


Article 260 TFEU76 under which the CJEU is empowered to fine a Member
State for failure to comply with a decision of the Court. The Commission is a
privileged applicant for the purposes of Article 263 TFEU77 which means that
it does not have to establish locus standi before initiating judicial review
proceedings of European Union legal acts and can take direct actions before
the CoJ to review acts adopted by the EU institutions.The Commission in
certain instances acts as the investigator and initial judge of a Treaty violation
by Member States or private firms. The two most important areas are State
Aids and Competition policy. These Commission decisions are ordinarily
subject to judicial review by the General Court.
7.6 Organisation of the Commission
The Commission is assisted by a staff under a Secretary General, which is

divided into Directorate Generals (DGs), e.g., DG Agriculture, DG Competition,
DG Fisheries etc.) DGs are responsible to the Commissioner with
responsibility for that portfolio. DGs are subdivided into Directorates and
Directorates into Divisions. There are also several specialised services such
as the Legal Service.
Commissioners are allocated a portfolio with responsibility for one or more

subjects. The President of the Commission does not have a portfolio but has
what Chalmers refers to as a “roving policy brief ... the President may seek to
take over a particular issue and drive Commission policy on that issue.”78
In addition, each Commissioner is assisted by a small personal staff (a cabinet)

comprised of political associates, seconded national staff and seconded
Community staff. The heads of these personal staffs (the Chefs de Cabinet)
meet regularly to set agendas for Commission meetings.
8. The Court of Justice of the European Union

The Court of Justice of the European Union is the judicial institution of the EU.
The Court of Justice of the European Union is governed by Article 19 TEU and
Articles 251-281 TEFU.
8.2 History
The European Court of Justice (“the CoJ”) was one of the original four
institutions provided for in the founding Treaties. Originally, there was only one
court; the European Court of Justice. The Single European Act provided a legal
basis for a second-tier court, the Court of First Instance (CFI).79 There was no
major reform of the Court structure until the Nice Treaty which provided for a
series of judicial panels or third-tier courts. One such specialised court has
been established: the Civil Service Tribunal.

79 Established by Council Decision 88/591 [1988] OJ L319/1.

The judicial branch of the European Union comprises three tiers. At Lisbon the
institution was re-named the Court of Justice of the European Union (CJEU).
The highest level court within the institution is the Court of Justice. At Lisbon,
the Court of First Instance was renamed the General Court. The judicial panels
are now called specialised courts and to date there is one, i.e. the Civil Service
Tribunal.
Article 19 TEU states:
The Court of Justice of the European Union shall include the Court of
Justice, the General Court and specialised courts. It shall ensure that
in the interpretation and application of the Treaty that the law is
observed.
For the purposes of this course it is not intended to study the Civil Service
Tribunal. Some mention of it will be made where relevant but the focus will be
on the Court of Justice and the General Court.
Prior to Lisbon, the General Court was called the Court of First Instance. It was
established pursuant to the Single European Act and commenced work in
October 1989. In French, the CFI was known as the “Tribunal de Première
Instance”. Consequently, cases registered before the CFI had the letter “T”
before the case number. After the establishment of the CFI, CoJ cases were
pre-fixed with the letter “C” for the French “Cour de justice de l’union
européenne”. In turn, this explains why it is necessary to search the numerical
database on the Court’s website (www.curia.eu) for CoJ decisions up to 1989
and since 1989 separately and the CFI judgments from 1989 onwards. These
pre-fix letters have been retained. The Civil Service Tribunal cases are pre-
fixed with the letter “F”.
8.3 Overview of the Court of Justice of the European Union
The primary task of the Court of Justice of the European Union is to “ensure
that in the interpretation and application of the Treaty, the law is observed.” 80
The Court of Justice of the EU examines the legality of the European Union
measures and ensures the uniform interpretation and application of EU law.
The seat of the Court of Justice of the European Union is Luxembourg.
The Court of Justice of the European shall, in accordance with the

Treaties:
(a) Rule on actions brought by a Member State, an institution or a

natural or legal person;
(b) Give preliminary rulings at the request of courts or tribunals of the

Member States, on the interpretation of Union law or the validity of
acts adopted by the institutions;
(c) Rule in other cases provided for in the Treaties.

The Rules governing the Court of Justice are found in the Treaties themselves,
in the Statute of the European Court of Justice of the European Union (the
Statute) and in the Rules of Procedure of the Court of Justice, the Rules of
Procedure of the General Court and the Rules of Procedure of the Civil Service
Tribunal. Article 281 TFEU provides that the Statute of the European Court of
Justice shall be laid down in a separate Protocol. Protocol No. 3 attached to
the Treaties is the Protocol on the Statute of the Court of Justice of the
European Union.
However, the role that the Court of Justice has played in the development of
the EU will not be gleaned from those provisions alone. The Court of Justice
has contributed enormously through its case-law. Some of those developments
including direct effect, supremacy (primacy) and the protection of fundamental
rights as general principles of EU law will be explored later in the course.
8.4 Composition of the Court of Justice and the General Court
The Court of Justice shall consist of one judge per Member State. It
shall be assisted by Advocates-General.
The General Court shall include at least one Judge per Member State.
8.4.1 The Court of Justice

At the Court of Justice level there is one Judge per Member State, i.e., currently
27 judges.
Article 251 TFEU provides:
The Court of Justice shall sit in chambers or in a Grand Chamber, in

accordance with the rules laid down for that purpose in the Statute of
the Court of Justice of the European Union.
When provided for in the Statute, the Court of Justice may also sit as a
full Court.
Whether the Court sits as a full court, as a Grand Chamber, or in chambers is

determined by the Statute. The Statute provides for chambers of three and five
judges and a Grand Chamber of fifteen judges. In addition, the Court of Justice
is obliged to sit as a full court (comprising all judges) where cases are brought
before it pursuant to a number of specific Treaty Articles.81 In addition the Court
of Justice has discretion, where it considers that a case before it is of
exceptional public importance, after hearing the Advocate General, to refer the
case to the full court. Wyatt and Dashwood emphasise that “[r]ecourse to the
full court is now wholly exceptional.”82 The vast majority of cases are heard by
chambers of three or five judges.
81 When the European Parliament requests the dismissal of the Ombudsman; when the Council
or Commission request the compulsory retirement of a Commissioner, or to deprive a
Commissioner of his pension or benefits; and when the Court of Auditors requests the Court to
find that a member no longer fulfils the requisite conditions or meets the obligations to hold
office; and also in certain specified instances under the EAEC Treaty.
82 Page 391.

Only one judgment is delivered. There are no dissenting judgments. Pursuant
to the Statute, deliberations of the Court are secret. It appears that the
decisions are reached through some form of consensus building. The
collegiate nature of the decisions may protect the members of the Court from
political pressure but sometimes renders the reasoning of the judgment
unclear. Pursuant to the Statute, judgments are required to state the reasons
on which they are based and they are required to be read in open court.
8.4.2 Advocates General

Article 19(2) TEU provides that the Court of Justice will be assisted by
Advocates General. There are currently eleven Advocates General: one from
each of France, Germany, Italy, Spain, and Poland; with the remaining six posts
to rotate among the other Member States. 83
A retired member of the Irish Supreme Court, Fennelly J, was Advocate

General for a term. Ireland currently holds a rotating Advocate General. The
Hon. Mr. Justice Gerard Hogan, formerly a judge of the Court of Appeal, was
nominated by the Government in 2018 but has now been appointed to the Irish
Supreme Court. On May 28, 2021, the Government nominated former General
Court judge Anthony Collins to this position.
The principal function of the Advocate General is to make reasoned

submissions on cases, to present an independent and impartial opinion on the
case to the Court. The Advocate General presents his Opinion after the parties
have concluded their submissions and before the Judges begin their
deliberations. The Opinion will be fully reasoned. There is no equivalent to an
Advocate General in common law systems. The Advocate General hears the
case at the same time as the Court, but his Opinion is not determinative; it
merely contains recommendations. The parties to a case are not entitled to
comment on Opinion of the Advocate General (see for example the decision in
Emesa Sugar (Free Zone) v. Aruba [2000] ECR I 665 (Case C-17/98)).
Prior to the Nice Treaty, Advocates General were required to give an Opinion
in every case, but this is no longer necessary in cases which concern no new
points of law.
8.4.3 Qualifications of Judges and Advocates General of the Court of Justice

The Judges and Advocates-General of the Court of Justice shall be

chosen from persons whose independence is beyond doubt and who
possess the qualifications required for appointment to the highest
judicial offices in their respective countries or who are jurisconsults of
recognised competence; they shall be appointed by common accord of
the governments of the Member States for a term of six years, after
consultation of the panel provided for in Article 255.
83 Article 252 TFEU.Council Decision 2013/336/EU increasing the numbers of Advocates

General of the Court of Justice of the European Union [2013] OJ 2013 L179/92. A Declaration
by the Conference of the Representatives of the Governments of the Member States of 29
January 2020 on the consequences of the withdrawal of the UK from the European Union for
the Advocates-General of the CJEU reaffirmed Decision 2013/336/EU i.e. the number of
Advocates-General of the Court of Justice of the European Union will remain at eleven.

Every three years there shall be a partial replacement of the Judges
and Advocates-General, in accordance with the conditions laid down in
the Statute of the Court of Justice of the European Union.
The Judges shall elect the President of the Court of Justice from among
their number for a term of three years. He may be re-elected.
Retiring Judges and Advocates-General may be reappointed.
The Court of Justice shall appoint its Registrar and lay down the rules
governing his service.
The Court of Justice shall establish its Rules of Procedure. Those Rules
shall require the approval of the Council.
The requirement of consulting a panel was introduced by the Lisbon Treaty

which inserted a new provision at Article 255 TFEU. It provides:
A panel shall be set up in order to give an opinion on candidates’

suitability to perform the duties of Judge and Advocate General of the
Court of Justice and General Court before the governments of the
Member States make the appointments referred to in Articles 253 and
254.
The panel shall comprise seven persons chosen among former

members of the Court of Justice and the General Court, members of
national Supreme Courts and lawyers of recognised competence, one
of whom shall be proposed by the European Parliament. The Council
shall adopt a decision establishing the panel’s operating rules and a
decision appointing its members. It shall act on the initiative of the
President of the Court of Justice.
The qualifications for Judges and Advocates General are same. While some
Member States have appointed academics, Ireland tends to appoint practising
lawyers or domestic judges.
The current President of the Court of Justice is Mr Koen Lenaerts.The current

Irish judge is Mr Eugene Regan, who was formerly a Senior Counsel. Ireland
was the first country to appoint a female judge to the Court of Justice in 1999
(Macken J, who was subsequently appointed to the Irish Supreme Court and is
now retired as a judge).
The Statute of the Court of Justice requires each judge, prior to taking up office,
to take an oath, part of which is to preserve the secrecy of the deliberations of
the Court. The Statute also provides that Judges may not hold any political or
administrative office. They may not engage in any occupation, whether gainful
or not, unless exemption is exceptionally granted by the Council.
Article 6 of the Statute provides that a Judge may be deprived of his office or
of his right to a pension or other benefits in its stead only if in the unanimous
opinion of the Judges and Advocates General of the Court, he no longer fulfils
the requisite conditions or meets the obligations arising from his office. The
Judges, Advocates General and the Registrar of the Court of Justice are
required to reside at the place where the Court has its seat (Luxembourg).

The term of office of a Judge is six years but Judges can be reappointed. The
appointment of new judges or reappointment of judges is staggered so that
there is a partial replacement every three years. Article 9 of the Statute of the
Court of Justice provides for the alternate replacement of 14 and 14 Judges.
Advocates General are replaced every three years, in groups of four or five.
8.4.4 The General Court

The General Court (previously called the Court of First Instance (CFI)) was
established in 1989, to alleviate the workload of the Court of Justice and to
improve the administration of justice by engaging in more detailed analysis of
factual matters. Its Rules of Procedure contained extensive investigatory
powers.
Article 19(2) TEU at the second sup-paragraph provides:
The General Court shall include at least one judge per Member State.
The number of Judges of the General Court shall be determined by the

Statute of the Court of Justice of the European Union. The Statute may
provide for the General Court to be assisted by Advocates-General.
While the Court of Justice is limited to one judge per Member States, there is
potential for the General Court to have more than 27 judges. Recent reforms
have increased the number of judges and will be discussed below. The
President of the General Court is Mr. Marc Jaeger and Irish judges were
Anthony Collins (20132021 but now nominated by the Government for the role
of Advocate General and awaiting replacement following a recruitment
campaign), and Colm Mac Eochaidh, formerly a judge of the High Court,
member of the General Court since 2017.
There are no separate Advocates General in the General Court; however, the
Statute provides that the members of the General Court may be called upon to
perform the task of Advocate General. A judge who acts as Advocate General
may not take part in the judgment of that case.
The General Court sits in chambers of three or five judges or a Grand Chamber
of 13 judges. The Statute provides that, in certain cases governed by the Rules
of Procedure, the General Court may sit as a full court where this is justified by
the legal complexity or importance of the case. There is also provision for the
General Court to sit as a single judge.
The Rules of Procedure of the General Court sets out categories of cases which
can be heard by a single Judge. One category is those under Article 270 TFEU
(ex Article 236 EC), the so-called staff cases. The Rules also set out categories
of cases which are not capable of delegation to a single Judge.84
Like the Court of Justice, the General Court delivers a single judgment; once
again, there are no dissenting judgments.
84 In Liberos v. Commission (Case C-171/00P), an appeal to the Court of Justice was upheld
where a case was found to have been wrongly delegated to a single judge where the legality
of an act of general application was at issue.

8.4.5 Qualifications of Judges of the General Court
Article 254 TFEU, at sub-paragraphs 2-6 provides:
The members of the General Court shall be chosen from persons

whose independence is beyond doubt and who possess the ability
required for appointment to high judicial office. They shall be appointed
by common accord of the governments of the Member States for a term
of six years, after consultation by the panel provided for in Article 255.
The membership shall be partially renewed every three years. Retiring
members shall be eligible for reappointment.
The Judges shall elect the President of the General Court from among
their number for a term of three years. He may be re-elected.
The Court of First Instance shall appoint its Registrar and lay down the
rules governing his service.
The General Court shall establish its Rules of Procedure in agreement

with the Court of Justice.
Those Rules shall require the approval of the Council.
Unless the Statute of the Court of Justice of the European Union

provides otherwise, the provisions of the Treaties relating to the Court
of Justice shall apply to the General Court.
8.5 Specialised Courts
Article 257 TFEU provides for the establishment of specialised courts attached
to the General Court to hear and determine certain classes of action or
proceeding brought in specific area at first instance.
Decisions given by specialised courts may be subject to a right of appeal on

points of law only or, when provided for in the regulation establishing the
specialised court, a right of appeal also on matters of fact before the General
Court.
The purpose of these specialised courts is to hear and determine at first

instance certain classes of action or proceedings brought in specific subject
matter areas. One judicial panel, the Civil Service Tribunal was established to
adjudicate on cases between the EU and its staff. It held its first hearing in
March 2006. The European Union Civil Service Tribunal is composed of seven
judges appointed for six years and whose period of office may be renewed. The
Tribunal sits in Chambers of three judges but may sit as a full court, a chamber
of five or as a single judge.
It had been anticipated that the next specialised court to be established would
be a Patent Court.
In December 2015, the Council adopted Regulation (EU, Euratom) 2015/2422

of the European Parliament and of the Council of 16 December 2015 amending
Protocol No 3 on the Statute of the Court of Justice of the European Union. The
aim of the reform is to enable the General Court to face an increasing
workload and to ensure that legal redress in the EU is guaranteed within a
reasonable time.

The reform provides for a progressive increase in the number of judges at the
General Court and for the merging of the Civil Service Tribunal with the
General Court.
At the entry into force of the reform in December 2015, 12 additional judges
were added to the General Court (representing Czech Republic, Sweden,
Spain, Hungary, Poland, Cyprus, Lithuania, Greece, Latvia, Luxembourg,
Slovakia and Malta). In September 2016, the seven posts of judges at the Civil
Service Tribunal were transferred to the General Court, to which nine further
judges will be attributed in September 2019. In total, this adds an additional 21
judges to the lower tier of European Courts, allowing the General Court
to deliver judgments within a reasonable time, in conformity with Article 47
of the Charter of Fundamental Rights. It also allows the General Court to decide
more cases in chambers of five judges or in grand chamber which will enable
a more in-depth deliberation on important cases.
The future partial replacements of judges will be organised in such a way that
member states nominate candidates for two posts. The aim is to ensure to the
greatest possible extent gender equality in the composition of the General
Court. By 2021 the Court of Justice will have to report on the functioning of the
General Court and make legislative proposals to amend its statute where
appropriate.
8.6 Types of Proceedings
The Court of Justice of the European shall, in accordance with the

Treaties:
(a) Rule on actions brought by a Member State, an institution or a

natural or legal person;
(b) Give preliminary rulings at the request of courts or tribunals of the

Member States, on the interpretation of Union law or the validity of
acts adopted by the institutions;
(c) Rule in other cases provided for in the Treaties.
There are two main types of actions heard by the Court of Justice of the
European Union: Direct Actions and References for Preliminary Rulings.
8.6.1 Direct Actions

Direct actions start and finish in the Court of Justice of the European Union.
Direct actions include; infringement proceedings by the Commission against a
Member State pursuant to Article 258 TFEU; proceedings by a Member State
against another Member State for failure to fulfil an obligation under the Treaty
pursuant to Article 259 TFEU; actions by the Commission against a Member
State for failure to comply with a decision of the CoJ pursuant to Article 260
TFEU; actions for annulment of Community acts by privileged applicants, semi-
privileged applicants and individuals pursuant to Article 263 TFEU; actions for
failure of the Community institutions to act pursuant to Article 265; disputes
relating to compensation for damage caused in the case of non-contractual
liability by the Community institutions or its servants pursuant to Article 268

TFEU and Article 340 TFEU; staff disputes between the EU institutions and
staff pursuant to Article 270 TFEU; disputes concerning obligations under the
European System of Central Banks pursuant to Article 271 TFEU; pursuant to
any arbitration clause contained in a contract concluded by or on behalf of the
Community pursuant to Article 272 TFEU; and any dispute between Member
States which relates to the subject matter of this Treaty if the dispute is
submitted under a special agreement pursuant to Article 273 TFEU.
Infringement actions and actions for annulment are dealt with in chapters 9 and
10 below.
8.6.2 Preliminary Rulings

Preliminary Rulings represent a stage in proceedings which have begun and
which will finish in a domestic court of one of the Member States. Where a
national judge encounters an issue of European law requiring resolution, before
judgment can be given, Article 267 TFEU provides for a question to be referred
to the Court of Justice in what is known as a preliminary ruling. It is for the
domestic court to apply the ruling to the facts of the case. This topic is
discussed in chapter 8 below.
8.6.3 Other Cases

Pursuant to Article 279 TFEU, the Court of Justice of the European Union has
the power to grant interim measures. Pursuant to Article 218(11) TFEU, the
institutions or the Member States may obtain the opinion of the Court of Justice
as to whether an envisaged agreement between the EU and one or more States
or international organisations is compatible with the provisions of the Treaty.
An example is Opinion 2/94, Opinion on the Accession of the European
Community to the European Convention on Human Rights [1996] ECR I 1759.
A number of these different types of proceedings will be the subject matter of

future lectures: infringement proceedings, preliminary references, and
annulment actions.
8.6.4 Limitations on Jurisdiction

The jurisdiction of the Court of Justice of the European Union is limited in the
following areas: Common Foreign and Security Policy; Police and Judicial Co-
operation; criminal matters; and as regards sanctions imposed on Member
States in the event of violation of the EU’s core values.
8.7 Procedure
The procedure of the Court of Justice involves a written stage, after which the
Judge Rapporteur prepares the report for hearing, followed by the oral hearing
stage (which can be dispensed with). The Opinion of the Advocate General
constitutes the last part of the oral part of the procedure. The members of the
Court assigned to hear the case then deliberate and prepare one written
decision. There are no dissenting opinions. There is no strict system of binding
precedent/stare decisis.
8.8 Languages
In principle, cases can be conducted in any of the official languages of the

European Union. The working language of the Court is French and
deliberations are conducted in French. In direct actions, the language of

applicant is used. In preliminary references, the language used is that of the
referring Court. In an appeal to the Court of Justice from the General Court,
the language will be that used in the case at the General Court. Advocates
General write their opinions in their own languages. After the 2004
enlargement, owing to difficulties translating directly from each official language
to each of the others, five co-called pivot languages were adopted (English,
French, German, Italian and Spanish) via which some translations are now
produced. Following Croatian accession, there are twenty four official
languages.
Palgrave Macmillan, 2017); chapters 8–11;
2011), chapter 3;
chapter 2;
o Statute of the Court of Justice of the European Union (Protocol No. 3 to
the Lisbon Treaty);
o Rules of Procedure of the Court of Justice;
o Rules of Procedure of the General Court.
o http://www.unified-patent-court.org/images/documents/enhanced-
european-patent-system.pdf
o European Parliament website – http://europarl.europa.eu/portal/en
o European Council and Council of the European Union -
https://www.consilium.europa.eu/en/
o European Commission - https://ec.europa.eu/commission/index_en
o Court of Justice of the European Union -
https://curia.europa.eu/jcms/jcms/j_6/en/

Chapter 3
EU Legal Acts and Law-Making
1. Required Reading
University Press, 2020), chapters 5 and 6.
2. Introduction
In earlier chapters, the primary source of EU law (the Treaties) was explored.
Mention was also made of the acquis communautaire or the body of the EU law
built up over time and which new Member States must accept. The acquis
communautaire comprises the Treaties together with the protocols and
declarations attached to the Treaties, international agreements, the case- law
of the Court of Justice, the development of legal principles by the Court of
Justice and secondary legislation. The Charter of Fundamental Rights of the
EU also forms part of the body of EU law.
This chapter is concerned with secondary sources of EU law.
The key provision setting out the different types of legal acts is Article 288
TFEU. In addition, Article 216 TFEU authorises the EU to conclude
international agreements with third countries (i.e. non-EU States) and
international organisations, which are legally binding on the EU institutions and
the Member States. The Court of Justice has determined that it can review all
acts that are entitled to produce legal effects. For example, in Cases 8-
11/66 Noordwijks Cement Accord [1967] ECR 75, the Court of Justice
considered that a Commission letter produced legal effects and was thus
capable of judicial review. It is apparent, therefore, that an act does not have
to be described as a regulation, directive or decision in order for it to have legal
effects.
The Lisbon Treaty distinguishes for the first time in the EU legal order between
legislative and non-legislative acts. Article 289(3) TFEU provides, “Legal
acts adopted by legislative procedure shall constitute legislative acts.”
Article 289 (1) and (2) TFEU provide for the adoption of regulations, directives
and decisions by the “ordinary legislative procedure” or by special
legislative procedures. The distinction between legislative acts and non-
legislative acts is drawn on the basis of how they are adopted. If they are
adopted using legislative procedures, then they are legislative acts. As Craig
and de Búrca note “[t]he legal acts which can be legislative are regulations,
directives and decisions: provided that they are adopted in accordance with a
legislative procedure they will constitute legisla;tive acts for the purposes of the

Lisbon Treaty.”1 Non-legislative acts comprise all other acts adopted pursuant
to the Treaty.
Craig and de Búrca note that after Lisbon, “[t]here are now five principal tiers
to the hierarchy of norms in EU law, which are in descending order: the
constituent Treaties and Charter of Rights; general principles of law; legislative
acts; delegated acts and implementing acts.”2
In later parts of the EU Law course, particularly direct effect in chapter 5

and judicial review (Article 263 TFEU) in chapter 10 it is important to
distinguish the different types of legal acts. In the context of judicial review
and specifically in the context of locus standi for non-privileged applicants,
Article 263(4) TFEU mentions “a regulatory act, however same is not defined
in the Treaties.
3. EU Legal Acts
Article 288 TFEU sets out the different types of legal acts and contains
definitions of each. Article 291(1), third sub-paragraph requires that all
legislative acts are published in the Official Journal and provides that a
legislative act enters into force on the date specified in the act or in the absence
thereof, on the twentieth day following that of their publication.
The Lisbon Treaty simplifies the range of legal acts by applying the legal acts
which existed under the first, EC Pillar across all areas of EU Law.
To exercise the Union’s competences, the institutions3 shall adopt

regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its

entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each

Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods.
A decision shall be binding in its entirety. A decision which specifies

those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force. [Footnote

added.]
Three of the five types of legal acts listed above are binding, and this chapter
will focus on binding types of legal acts: Regulations, Directives and Decisions.
1 Craig and de Búrca (5th ed.), at 112.

3 The EP, the Council, and the Commission.

4. Different Types of Binding EU Legal Acts
4.1 Regulations
There are three elements to the definition of a Regulation.
First, regulations are of “general application”. Thus, Regulations apply to all

Member States. This is in distinction to Directives which do not have to be
addressed to all Member States.
Second, a regulation “is binding in its entirety”. Regulations are binding as to

method as well as to the result to be achieved. Again, this is in distinction to
Directives which leave the choice of implementing measure to the Member
States.
Third, Regulations are “directly applicable”, which means that from the date
of their entry into force they are automatically incorporated into the domestic
legal order of the Member State and require no transposing measures. “Direct
applicability” therefore obviates the need for traditionally dualist States, such
as Ireland, to take transposing measures before a Regulation takes effect in its
internal legal order.
The Court of Justice (the CoJ) has indicated that Member States should not
pass any measures which conceal the EU nature of regulations. In Variola v.
Amministrazione delle Finanze [1973] ECR 981 (Case 34/73) the CoJ stated at
paragraph 11:
…Member States are under an obligation not to introduce any measure

which might affect the jurisdiction of the Court to pronounce on any
question involving the interpretation of Community law or the validity of
the act of the institutions of the Community, which means that no
procedure is permissible whereby the Community nature of a legal rule
is concealed from those subject to it.
In limited instances, Regulations may, however, require implementation

measures, for example where a regulation affords discretion to a Member
State. Where a Regulation requires an implementing measure and a Member
State fails to adopt them, this will be a breach of EU law.
In Maher v. Minister for Agriculture and Food [2001] 2 IR 139, an analysis of

the discretion afforded to Ireland in implementing Milk Quota Regulations was
conducted by the Supreme Court is seeking to determine whether
implementation by Statutory Instrument rather than by Statute was
“necessitated by the obligations of membership”, the test set out in Article 29.4
of the Constitution. Keane CJ stated that the policy choices available to the
Member States had been reduced almost to vanishing point.
It is because of the characteristic of “direct applicability” that there was little

surprise when the CoJ held in early cases such as Leonesio v. Ministero dell’
Agricolura delle Foreste [1972] ECR I 287 (Case 93/71) that Regulations were
capable of “direct effect”, meaning that they could be relied on by individuals in
the national courts of the Member States. In the case-law the COJ does not
always draw a clear distinction between “direct applicability” and “direct effect”
and particularly in some of the case-law in relation to Regulations uses the

terms interchangeably. This topic will be subject to more detailed consideration
later in the course.
Regulations are the regarded most powerful and centralist law making tools
available to the EU as without any action on the part of the Member States they
become part of the national legal order. Regulations are used when there is a
need for uniformity.
In many instances the Treaty leaves open to the political institutions the choice
of whether to legislate by Regulation, Directive or Decision. There are only a
very limited number of instances where the Treaty specifies the use of
Regulations. An example is Article 109 TFEU which provides that the political
institutions “may make any appropriate regulations for the application of Articles
107 and 108” TFEU...”4
Under Article 263 TFEU it was traditionally more difficult for individuals to
challenge regulations than decisions. In these cases it was frequently argued
on behalf of individual litigants that the measure being challenged is in reality a
decision and not a regulation. Naming a measure a Regulation does not
determine that it is in fact a Regulation. Article 263 TFEU will be explored later
in the course.
4.2 Directives
A Directive shall be binding, as to the result to be achieved, upon each Member

State to which it is addressed, but shall leave to the national authorities the
choice of form and methods. Unlike Regulations, a Directive does not have to
be addressed to all Member States.
There are three elements to the definition of a Directive.
First, a Directive is "binding, as to the result to be achieved", not in its entirety.

Second, a Directive is only binding on the "Member State to which it is
addressed" and thus, may be addressed to one or more Member States or to
all Member States. Third, a Directive leaves "to the national authorities the
choice of form and methods". An implementing measure is required on the part
of the Member State governments but the choice of implementing measure and
method of implementation are at the discretion of each Member State.
Directives are the legal instrument of choice where harmonisation rather than
uniformity is required. Directives afford a degree of flexibility.
Article 297 TFEU stipulates that Directives must be notified to those to whom
they are addressed.
A key feature of Directives is that they usually give Member States a specified
period in which to implement the Directive in the national legal order.
Owing to the lack of “direct applicability” in the definition of Directives and the
fact that Directives require implementing measures on the part of the Member
States there was considerable surprise when the CoJ determined in Van Duyn
v. Home Office [1974] ECR I-1337 (Case 41/74) that Directives were capable
4 Articles 107 and 108 TFEU are concerned with State Aid.

of direct effect. Because of these very characteristics several additional criteria
are required to be satisfied before a Directive is considered to have direct effect.
As indicated above there are many instances where the Treaty leaves open the
choice of type of legislation to use. In addition, there are a considerable number
of Treaty provisions which stipulate the use of Directives.
4.3 Decisions
A Decision shall be binding in its entirety. A Decision which specifies those to

whom it is addressed shall be binding only on them.
There are two elements to the definition of a Decision. First like regulations,
Decisions are "binding in their entirety".
Second, a Decision which specifies those to whom it is addressed shall be

binding only on them.” Decisions which do not have specified addressees bind
the EU and the Member States.
You will notice that category of potential addressees is wider in relation to

decisions than Directives. Directives have the potential to be addressed to one,
some, or all of the Member States only, while Decisions are capable of being
addressed to one or more Member States, to undertakings and to private
individuals.
There are many instances where the exclusive use of Decisions is stipulated in
the Treaty. For example, Article 105(2) TFEU provides in respect of
infringement of competition laws that “the Commission shall record such an
infringement in a reasoned decision.”
Article 297 TFEU provides that Decisions which specify to whom they are
addressed are notified to those parties and shall take effect upon such
notification.
4.4 Non-binding EU Acts: Recommendations and Opinions
Article 288 TFEU provides “Recommendations and opinions shall have no

binding force.”
Regarding both recommendations and opinions, the Treaty simply defines

them in terms of one negative element that of not having binding force.
The use of recommendations or opinions is specified in various provisions of

the Treaty. Article 292 TFEU empowers the Council to adopt
recommendations.
Although neither recommendations nor opinions are binding, it is open to a

national court to make a reference to the CoJ concerning the interpretation or
validity of such a measure. This issue arose for consideration by the CoJ in
Grimaldi v. Fonds des Maladies Professionelles [1989] ECR 4407 (Case C-
322/88). The CoJ emphasised that, pursuant to Article 267 TFEU, the CoJ has
jurisdiction to give preliminary rulings concerning the validity and interpretation
of all acts of the institutions.

5. Features of EU Legal Acts
5.1 Judicial Review by the Court of Justice
EU legal acts are capable of being judicially reviewed by the CoJ. There is a
strict two-month time limit in which it is possible to bring such an action.
This is dealt with in Article 263 TFEU and is discussed in detail in chapter 10.
5.2 EU Legislation is required to have a Legal Basis
Each piece of EU Legislation must be grounded upon a legal base, i.e.,

article(s) of the Treaty. The legal base indicates that the EU has the power to
legislate in a given area.
The legal basis determines the legislative procedure and the type of laws. This
in turn influences the power that each political institution has. The choice of
legal basis is related to the issue of competence. The preamble to a legal act
should state the particular Treaty Article on which it is based. Sometimes a
provision may be capable of being based on alternative Treaty provisions.
In Commission v. Council (Generalised Tariff Preferences case) [1987] ECR

1493 (Case 45/86), the Commission argued that the regulations at issue should
have been adopted under a Treaty provision which required QMV while the
Council argued that the regulations could be adopted only under a Treaty article
(Article 352 TFEU) which required unanimity. The Preamble to the measure
did not make a reference to a specific Treaty article but rather relied on the
Treaty as a whole; “having regard to the Treaty”. The CoJ held that the
measure was void for failure to specify the precise legal basis, which was an
infringement of an essential procedural requirement and that as the measure
could have been adopted under the Treaty Article proposed by the Commission
the Council was not justified in relying on Article 352 TFEU, a type of fall-back
provision which allows legislation necessary to attain one of the objectives of
the EU even where the necessary powers have not been provided by the
Treaty.
In UK v. Council (Working Time Directive case) [1996] ECR I 5755 (Case C-

84/94), the UK Government argued that the Working Time Directive, which had
been adopted by QMV pursuant to a legal basis relating to health and safety,
should have been adopted under one of two provisions, both of which required
unanimity.
The significance of the choice of legal basis is that it will have implications
for the legislative procedure to be followed in enacting the measure. The
legislative procedure in turn will have implications for, in particular, the
role of the European Parliament in legislating and the type of voting
mechanism to be used in the Council.
Where a measure comes partly within an area covered by one Treaty article
and partly within an area covered by another Treaty article and the procedural
requirements differ under the two provisions, the CoJ indicated in Commission
v. Council (Commodity Coding) [1988] ECR 5545 (Case 165/87) that both sets
of procedural requirements would have to be satisfied.

However, that judgment must be read in light of Commission v. Council
(Titanium Dioxide) [1991] ECR I 2867 (Case C-300/89), the measure at issue
had two purposes. The two sets of procedural requirements were incompatible.
The CoJ held that the ruling in Commission v. Council (Commodity Coding)
could not be applied, and stated that one or other provision would have to be
chosen as the legal basis.
In Commission v Council (Recovery of Indirect Taxes) [2004] ECR I 4829 (Case

C-338/01), the Council had adopted a provision on the basis of provisions
requiring unanimity. It was argued that it should have been adopted under a
provision requiring co-decision. The CoJ held (at [55]-[57]):
If examination of a Community measure reveals that it pursues a

twofold purpose or that it has a twofold component and if one of these
is identifiable as the main predominant purpose or component
whereas the other is merely incidental, the act must be based on
single legal basis, namely that required by the main or
predominant purpose or component.
By way of exception if it is established that the measure simultaneously

pursues several objectives which are inseparably linked without one
being secondary and indirect in relation to the other, the measure must
be founded on the corresponding legal bases.
However, no dual legal basis is possible where the procedures laid

down for each legal basis are incompatible with each other.
The wording of the Article requiring co-decision (now the Ordinary Legislative
Procedure) made it clear that it only applied if the Treaty did not provide
otherwise and therefore could not be the correct legal basis.
In Commission v. Council (Framework Directive on Waste) [1993] ECR I 939

(Case C-155/91), the CoJ considered that the centrality of the Directive as
focusing on environmental management rather than free movement of waste
and accepted that the Directive was validly adopted on an environmental basis.
The CoJ therefore looked to the predominant purpose.
In Parliament v. Council (Case C-263/14, EU:C:2016:435) the Court, sitting as

the Grand Chamber, annulled Council Decision 2014/198/CFSP of 10 March
2014 on the signature and conclusion of the Agreement between the European
Union and the United Republic of Tanzania on the conditions of transfer of
suspected pirates and associated seized property from the European Union-
led naval force to the United Republic of Tanzania.
The Parliament argued that the contested decision had been wrongly adopted
in accordance with the specific procedure for agreements that relate exclusively
to the CFSP, provided for in Article 218(6) TFEU, which excludes any
participation of the Parliament. In addition, the Parliament complained that the
Council had failed to keep it immediately and fully informed at all stages in the
negotiation and conclusion of the agreement as was required by Article 218(10)
TFEU.
Applying the predominant purpose test, the Court held that the EU-Tanzania
agreement fell predominantly within the scope of the CFSP, and not within the
scope of judicial cooperation in criminal matters or police cooperation.

Therefore, the decision concerning its signature and conclusion was correctly
adopted in accordance with the specific procedure for agreements relating to
the CFSP.
As to the duty to inform the Parliament under Article 218(10) TFEU, the Court
held that this extended to the intermediate results reached by the negotiations.
Thus, the Council should have sent the text of the draft agreement and that of
the draft decision in so far as the text of those drafts had been communicated
to the Tanzanian authorities with a view to concluding the EU–Tanzania
agreement. Failure to do so denied the Parliament the possibility to exercise its
right of scrutiny on CFSP matters and, accordingly, the Court annulled the
contested decision for infringement of an essential procedural requirement.
If the Court cannot ascertain the predominant purpose it will determine which
measures take precedence over the other by looking for example at the
language of the provisions. Article 352 TFEU provides a basis for Community
action to attain an objective of the Community where Treaty has not provided
the necessary powers would rank at the bottom.
Article 296(3) TFEU provides:
When considering draft legislative acts, the European Parliament and

the Council shall refrain from adopting acts not provided for by the
relevant legislative procedure in the area in question.
5.3 The Requirement to Give Reasons
Legal acts shall state the reasons on which they are based and shall
refer to any proposals, initiatives, recommendations, requests or
opinions which are required by Treaties.
This imposes an important procedural requirement - the duty to give reasons

for adopting measures - making the process more transparent. In addition the
obligation to give reasons facilitates judicial review.5
6. EU Legislation (Law-making)
6.1 Initiating EU Legislation

The Commission has the right to initiate legislation. Article 17(2) TEU provides:
Union legislative acts may only be adopted on the basis of a

Commission proposal, except where the Treaties provide otherwise.
Other acts shall be adopted on the basis of a Commission proposal
where the Treaties so provide.
Pursuant to Article 241 TFEU, the Council has the power to request the
Commission to undertake studies or submit proposals. Article 255 TFEU
provides that the EP can “request the Commission to submit any appropriate
proposal on the matters on which it considers that a Union act is required for
5 See Germany v. Commission [1963] ECR 63 (Case 24/62)

the purpose of implementing these Treaties.” Thus, the Council and the
Parliament do not have a direct right of legislative initiative but can indirectly
influence the initiation of Community legislation.
The citizens’ initiative introduced by the Lisbon Treaty6 means that a million
citizens of a significant number of Member States may invite the Commission
to submit a legislative proposal7.
Other express exceptions to the Commission’s right of legislative initiative are

provided for in the Treaty. For example, an exception to the Commissions’ right
of legislative initiative is found in Article 76 TFEU, which provides that in the
areas of Judicial Co-operation of Criminal Matters and Police Cooperation acts
may be adopted on (a) a proposal of the Commission or (b) on the initiative of
one quarter of the Member States.
Further exceptions are provided for in Article 289(4) TFEU, which provides:
In the specific cases provided in the Treaties, legislative acts may be

adopted on the initiative of a group of Member States or of the European
Parliament, on a recommendation from the European Central Bank or
at the request of the Court of Justice or the European Investment Bank.
6.2 The Legislative Procedures in the European Union
Pre-Lisbon, the European Convention identified twenty two different legislative

procedures in EU law. The Treaty of Lisbon has reduced the number of
procedures. The most important legislative procedure is the “Ordinary
Legislative Procedure” but the Treaty also provides for a “Special
Legislative Procedure”. The provisions of the Treaties will determine which
of the legislative procedures applies in a given instance.
In the EU there is no one “Legislature”. Each of the political institutions, the

Commission, the Council and the Parliament play a role in legislation making.
Broadly speaking the Council has the most power. To distinguish between the
legislative procedures the focus is on the degree of power afforded the
European Parliament. In the founding Treaties, the European Parliament was
given only a minor role in the legislative process. Through each of the reform
Treaties the legislative powers of the European Parliament have grown.

7 See Bürgerausschuss für die Bürgerinitiative Minority SafePack — one million signatures for
diversity in Europe v. European Commission (T-646/13) (February 3, 2017) in relation to the
citizens’ initiative. The General Court annulled Commission Decision C(2013) of September 13,
2013 rejecting a request for registration of a proposed citizens’ initiative entitled “Minority
Safepack – one million signatures for diversity in Europe” which sought to call on the EU to
improve the protection of persons belonging to national and linguistic minorities and strengthen
cultural and linguistic diversity in the Union. See also Puppinck & Ors. v. Commission (C-418/18
P, EU:C:2019:1113) where the Grand Chamber, dismissed an appeal brought by the organisers
of the European citizens’initiative (ECI) ‘One of us’ against the judgment of the General Court
dismissing their action for the annulment of the communication from the Commission of 28 May
2014 in relation to that ECI. The ECI sought to prohibit and put an end to EU financing of
activities involving the destruction of human embryos. The CJEU held that, pursuant to Article
11(4) TEU, ECIs were designed to ‘invite’ the Commission to submit an appropriate proposal
for the purpose of implementing the Treaties, not to oblige the Commission to take the action
or actions envisaged by the ECI.

6.3 EU Legislative Procedures
1. The ordinary legislative procedure shall consist in the joint

adoption by the European Parliament and the Council of a
regulation, directive, or decision, on a proposal from the
Commission. This procedure is defined in Article 294.
2. In specific cases provided for by the Treaties, the adoption of a

regulation, directive or decision by the European Parliament with
the participation of the Council or by the latter with the
participation of the European Parliament, shall constitute a
special legislative procedure.
6.3.1 The Ordinary Legislative Procedure - Council, Commission and the

European Parliament
This procedure was introduced by the Maastricht Treaty. At that time it was
called “co-decision”. However, the procedure has been modified from its
original guise. Under this procedure a measure cannot be adopted without the
approval of both the Council and the Parliament. It therefore affords the
European Parliament a “veto” power over legislation. The rationale of the
procedure is to achieve a text jointly approved by the Council and the
Parliament. The Commission proposes the legislation but it cannot be adopted
without the approval of the EP and the Council. Much EU legislation is adopted
on the basis of this procedure.
The Ordinary Legislative Procedure is set out in Article 294 TFEU. It affords
the EP two readings. If the EP suggests amendments which are not acceptable
to the Council, there is provision for a conciliation committee. The EP has a
veto. There is the possibility of an expedited procedure, whereby an act can
now be accepted after EP first reading where Council accepts all EP
amendments, and whereby if EP rejects Council common position an act is
deemed not adopted. Previously, the EP would have had to reconfirm its
rejection. The Ordinary Legislative Procedure affords EP a co-equal role (in
relation to the Council) in the legislative process where the use of the ordinary
legislative procedure is mandated. The power of the European Parliament has
also increased by virtue of the fact that under each of the Amsterdam, Nice and
Lisbon Treaties adoption of legislation by the ordinary legislative procedure was
expanded into further policy areas.
6.3.2 Special Legislative Procedures

Consultation: Council, Commission and Consultation with the Parliament
Consultation of the EP was provided for in the EEC Treaty. Prior to the SEA
the EP only had the right to be consulted about legislation and even this limited
right only applied where a particular Treaty article specified consultation of the
EP. The consultation procedure still applies in a limited number of Treaty
articles. The Commission proposes legislation, the Council consults the EP and
the Council adopts the measure. The voting mechanism (Unanimity or
Qualified Majority Voting) in the Council depends on the subject matter.
If the Treaty specifies consultation with the EP and the Council acts without
consulting the EP, the measure may be annulled (Roquette Frères v. Council
[1980] ECR 3333 (Case C138/79)) If the text of a proposal is amended

substantially after consultation, the Council must re-consult the EP (Parliament
v. Council (Cabotage II) [1992] ECR I 4593 (Case C-65/90)). The EP has an
obligation to give its opinion within a reasonable time (Parliament v. Council
(General Tariff Preferences) [1995] ECR I 693 (Case C-65/93)). Consultation
is a very weak power for the EP. While the Council is obliged to consult the
EP, it is not bound by the EP’s opinion.
Consent of the Parliament

Under the consent procedure,8 the EP enjoys considerable power. Unlike the
Ordinary Legislative Procedure, where the EP has a power of veto under
assent, the positive assent of the EP is necessary before a measure can
become law. In addition to being used in the adoption of some legislative acts
the consent of the European Parliament is also used, for example, in respect
of membership of the EU.
6.3.3 Passerelle clauses

The Lisbon Treaty also introduced “passerelle clauses” which allow first for the
possibility of new policy areas being subject to the “ordinary legislative
procedure” (i.e., for a provision requiring a specified special legislative
procedure to be made subject to the ordinary legislative procedure), and
secondly for Qualified Majority Voting in the Council to be expanded, without
Treaty amendment.
6.3.4 Summary
The Ordinary Legislative Procedure is now the most common form of law-
making in the EU.
6.4 Legislative Acts
As was noted in the introduction to this chapter, the Lisbon Treaty draws a
distinction in the EU legal order between legislative and non-legislative acts.
Legal acts adopted by legislative procedure shall constitute legislative

acts.
Article 289 (1) and (2) TFEU provide for the adoption of regulations, directives
and decisions by the “ordinary legislative procedure” or by special legislative
procedures. The distinction between legislative acts and non-legislative acts is
drawn on the basis of how they are adopted. If they are adopted using
legislative procedures, then they are legislative acts. As Craig and de Búrca
note “[t]he legal acts which can be legislative are regulations, directives and
decisions: provided that they are adopted in accordance with a legislative
procedure they will constitute legislative acts for the purposes of the Lisbon
Treaty.”9
6.5 Non-legislative Acts
Non-legislative acts can be divided into those provided for expressly by the
Treaties, “delegated acts” adopted by the Commission and “implementing
acts”.
8 Previously known as the assent procedure.


6.5.1 Non-legislative acts, expressly provided for by the Treaties
The Treaty provides for the adoption of non-legislative acts by the Commission,
the Council, and the European Council. For example, the Commission has
power to adopt non-legislative acts both in respect of Competition Law and
State Aid.
Some commentators consider that there are certain acts which do not fit the
categorisation of legislative, delegated or implementing acts10 e.g. astandard
administrative decision addressed to a particular person which falls within the
definition of a decision in Article 288 TFEU.11
6.5.2 Delegated acts

Article 290(1) TFEU provides for legislative acts to delegate to the Commission
the power to adopt “non-legislative acts of general application to supplement or
amend certain non-essential elements of the legislative act”.
Article 290(1) TFEU, second sub-paragraph provides:
The objectives, content, scope and duration of the delegation of power

shall be explicitly defined in the legislative acts. The essential elements
of an area shall be reserved for the legislative act and accordingly shall
not be the subject of the delegation of power.
The “essential elements” reserved for a legislative act must lay down the limits
of its conferral of power on the Commission, namely the objectives, content,
scope and duration of the conferral.12Article 290(2) TFEU requires legislative
acts to specify the conditions to which the delegation is subject which
conditions can include possible revocation by the European Parliament or the
Council or that delegated act may enter into force only if no objection is
expressed by the European Parliament or the Council within a set period.
Article 290(3) TFEU requires the use of the word “delegated” in the title of all
delegated acts.
For example, in the context of Common Agricultural Policy (CAP) Reform, a

series of legislative acts such as Regulation (EU) No 1305/2013 of the
European Parliament and of the Council of 17 December 2013 on support for
rural development by the European Agricultural Fund for Rural Development
(EAFRD) and repealing Council Regulation (EC) No 1698/2005 have been
enacted. These legislative acts are supplemented in non–essential
elements by delegated acts such as Commission Delegated Regulation (EU)
No 807/2014 of 11 March 2014 supplementing Regulation (EU) No 1305/2013
of the European Parliament and of the Council on support for rural development
by the European Agricultural Fund for Rural Development (EAFRD) and
introducing transitional provisions.
An example of these instruments can be found in Parliament v Commission (C-

286/14, EU:C:2016:183), where the Court defined the scope of the power
delegated to the Commission to supplement a legislative act, within the
meaning of Article 290(1) TFEU. This was an action for annulment brought by
10 Craig and de Búrca (5th ed.), at 118-120.

12 Czech Republic v. Commission EU:C:2017:595 (Case C-696/15P), at [51]. See also [59].

the European Parliament against Delegated Regulation No 275/2014. The
Court was required to consider whether the Commission had exceeded the
delegated power conferred on it by Regulation No 1316/2013 by adding a Part
VI to Annex I to Regulation No 1316/2013, instead of adopting a separate
delegated act.
The Court noted that a legislative act may delegate to the Commission the
power to adopt non-legislative acts of general scope which “supplement” or
“amend” certain non-essential elements of the legislative act and that these two
categories of delegated powers are clearly distinguished. Where the
Commission exercises a power to supplement a legislative act, its authority is
limited, in compliance with the entirety of the legislative act adopted by the
legislature, to development in detail of non-essential elements of the legislation
in question that the legislature has not detailed. By contrast, the delegation of
a power to amend a legislative act aims to authorise the Commission to modify
or repeal non-essential elements laid down by the legislature in that act.
The differences between the two categories of delegated powers referred to in

Article 290(1) TFEU precluded the Commission from being granted the power
to determine the nature of the delegated power conferred on it.
The Court held that by empowering the Commission to adopt delegated acts
“detailing” certain elements, Article 21(3) of Regulation No 1316/2013
authorised the Commission to “supplement” that Regulation, within the
meaning of Article 290 TFEU. For reasons of regulatory clarity and
transparency of the legislative process, the Commission could not add an
element to the actual text of that act as this would be liable to create confusion
as to the legal basis of that element, given that the actual text of a legislative
act would contain an element arising from the exercise, by the Commission, of
a delegated power which does not entitle it to amend or repeal that act.
Therefore, by adding a Part VI to Annex I to that Regulation, the Commission
failed to have regard to the difference between the two categories of
delegated powers provided for in Article 290(1) TFEU and such failure
resulted in the annulment of the delegated regulation. 13
6.5.3 Implementing acts

Article 291(1) TFEU provides that Member States have an obligation to
implement all EU legally binding acts. In addition to this obligation the provision
also provides for the Commission and in limited circumstances the Council to
adopt EU wide “implementing acts”. These are the third type of non-legislative
act. The purpose of such implementing acts is to ensure that EU legislative
acts are applied in a uniform way in all EU Member States.
Where uniform conditions for implementing legally binding Union acts

are needed, those acts shall confer implementing powers on the
Commission, or in duly justified specific cases and in the cases provided
13Conversely, in Czech Republic v. Commission ECLI:EU:C:2017:595 (C-696/15P), the Court

upheld the decision of the General Court that Directive 2010/40/EU gave the Commission an
adequate legal basis for establishing a national supervisory body by Delegated Regulations No
885/2013 and No 886/2013 and that the Commission had observed the limits of its power under
Artice 290 TFEU and the Directive.

for in Articles 24 and 26 of the Treaty on European Union, on the
Council.
Controls are provided for in Article 291(3) TFEU which states:
For the purposes of paragraph 2, the European Parliament and the

Council, acting by means of regulations in accordance with the ordinary
legislative procedure, shall lay down in advance the rules and general
principles concerning mechanisms for control by Member States of the
Commission’s exercise of implementing powers.
A Regulation laying down rules, called “comitology rules”14 for the control by
Member States of the Commission’s implementing powers entered into force
on the 1 March 2011. It establishes two procedures: an advisory procedure
and an examination procedure. Both procedures involve Committees (hence
“comitology”) composed of Member State representatives and chaired by the
Commission. Comitology has existed since the 1960s but these procedures
aim to achieve greater control.
Article 291(4) TFEU requires the use of the word “implementing” in the title of
all implementing acts.
Again, if we continue with the example of the CAP Reform, an example of an

implementing act is Commission Implementing Regulation (EU) No 808/2014
of 17 July 2014 laying down rules for the application of Regulation (EU) No
1305/2013 of the European Parliament and of the Council on support for rural
development by the European Agricultural Fund for Rural Development
(EAFRD).
6.5.4 Annulment
Acts which go beyond their remit may be annulled by the CoJ.15 Actions for
annulment of acts of the EU institutions are conducted under the procedure in
Article 263 TFEU (which will be discussed in greater detail in chapter 10).
7. Competence
Finally, it is necessary to provide a brief overview of the relationship between

and the manner in which power is shared between the EU and the Member
States. This will enhance your understanding of the distinction between
supranationalism and intergovernmentalism, allowing for a more critical
assessment of the Court of Justice’s jurisprudence in the chapters that follow.
Competences are divided into exclusive EU competences, competences

shared between the EU and its Member States, and those competences of the
EU to take action to support Member States. These are defined in Articles 2–6
TFEU. Competences not conferred on the EU by the Treaties remain with EU
countries.
14 Comitology controls existed prior to Lisbon.

15 See European Parliament v. Council ECLI:EU:C:2012:516, (Case C-355/10).

7.1 Exclusive Competence
As stated at Article 2(1) TFEU states that when the Treaties confer on the EU
exclusive competence in a specific area, only the EU may legislate and adopt
legally binding acts, and Member States can only do so if empowered by the
EU or for the implementation of Union acts.
Article 3(1) TFEU confers exclusive competence on the EU in five policy areas:
the customs union; competition rules necessary for the functioning of the
internal market; monetary policy for the Member States whose currency is the
euro; the conservation of marine biological resources under the common
fisheries policy and common commercial policy.
Article 3(2) TFEU also stipulates that the EU shall also have exclusive
competence for the conclusion of an international agreement when its
conclusion is provided for in a legislative act of the Union or is necessary to
enable the Union to exercise its internal competence, or in so far as its
conclusion may affect common rules or alter their scope.
In light of the wording of Article 3(2) TFEU, it should be read in conjunction with
Article 216 TFEU.
7.2 Shared Competence
Article 2(2) TFEU states that when the Treaties confer on the EU a competence
shared with the Member States in a specific area, the Union and the Member
States may legislate and adopt legally binding acts in that area. The Member
States shall exercise their competence to the extent that the Union has not
exercised its competence. The Member States shall again exercise their
competence to the extent that the Union has decided to cease exercising its
competence.
Article 4(1) TFEU outlines that the Union shall share competence with Member
States where the Treaties confer on it a competence which does not relate to
the areas of exclusive or supporting competence. An extensive list of shared
competences is set out at Article 4(2) TFEU and include policies such as the
internal market, environment, and consumer protection.
As noted by Craig and de Búrca, shared competence does not mean the
sharing will be the same in all areas where shared competence applies – it is
simply an umbrella term and there is significant variation as to the division of
competence in different areas of EU law.16
7.3 Supporting Competence
Article 2(5) TFEU provides that the EU shall have competence to carry out
actions to support, coordinate or supplement the actions of the Member States,
without superseding their competence in these areas.
In respect of Article 6 TFEU, the EU has competence to carry out actions to

support, coordinate or supplement the actions of the Member States. The areas
16 Craig and de Búrca, 7th ed., at p. 114-115.

of such action include protection and improvement of human health; culture;
tourism; education, vocational training, youth and sport.
7.4 Principles of conferral, subsidiarity and proportionality
It is important to clarify that competence is linked to the principle of conferral

at Article 5 TEU, which provides that the EU acts only within the limits of the
competences that EU countries have conferred upon it in the Treaties.
In addition, while the principle of conferral governs the limits to EU

competences, the use of those competences- and whether such competences
should be exercised - is underpinned by the principle of subsidiarity at Article
5(3) TEU and the principle of proportionality at Article 5(4) TEU.
The principle of subsidiarity stipulates that 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 principle of proportionality provides that the content and form of EU action
shall not exceed what is necessary to achieve the objectives of the Treaties.
8. Conclusion
The Lisbon Treaty has had a major impact on EU legal acts and EU law-
making.
First, the Lisbon Treaty has simplified the EU legal acts by reducing the number
of different types of acts and by applying the same range of acts across all
areas of EU activity.
Secondly, the Lisbon Treaty has also simplified EU law-making by reducing the
number of legislative procedures.
Thirdly, after Lisbon, the Treaties draw a distinction for the first time between
“legislative acts” and “non-legislative acts”. This distinction is drawn on the
basis of the method of adoption of the act. A legislative act is a legislative act
because it is adopted on the basis of one of the legislative procedures.
o Weatherill, Cases and Materials on EU Law (12th ed., 2016), chapter 3;
chapter 4.

Chapter 4
Direct Effect, Indirect Effect (The Duty of Harmonious
Interpretation) and Incidental Horizontal Effect
1. Required Reading
o Cahill et al, European Law (5th ed., Oxford University Press/Law Society
of Ireland, 2011), chapter 3;
University Press, 2014), pp 209-239;
o Moriarty, “Direct Effect, Indirect Effect and State Liability: An Overview”
14 (2007) IJEL 97.
2. Introduction
The doctrine of direct effect, alongside the doctrine of supremacy, form the
backbone to any study of EU institutional law. These examples of judicial
activism, at a time of political stagnation are regarded as two of the most
significant developments in EU Law. They have led to subsequent tensions
between the EU and Member States and arguably, have contributed to the
wave of Euroscepticism that appears to be prevailing currently in many
European Union Member States.
Direct effect is one of the central tenets of EU law. A provision of EU law which
is directly effective confers rights on individuals upon which they can rely before
their national courts. Not all provisions of EU law are directly effective. To be
directly effective an EU law provision must satisfy a number of requirements.
Direct effect was developed by the Court of Justice (CoJ). The doctrine is not
contained in the founding Treaties of the ECSC, EEC or Euratom nor in any of
the amending Treaties. The Lisbon Treaty does not contain a reference to
direct effect.
A basic understanding of this topic requires engagement with a number of

seminal cases, namely, Van Gend en Loos, Reyners, Ratti, Marshall, and
Foster. Each of these cases will be discussed below.
3. Introduction of Direct Effect

The doctrine was introduced by the CoJ in the landmark case of Van Gend en
Loos v. Nederlandse Administratie der Belastingen [1963] ECR I-1 (Case
26/62) where it held that Treaty provisions are capable of direct effect. The
case concerned reclassification of a chemical product under Dutch law. The
reclassification resulted in the duty payable on the product being increased. At
the time the EEC Treaty (Article 12 EEC (now Article 30 TFEU)) contained a
prohibition on increasing customs duties. A Dutch court referred the question

as to whether the Treaty provision had direct application in the Member State
courts, whether individuals could claim rights stemming from the Treaty in the
Member States’ courts. The CoJ held:
The objective of the EEC Treaty, which is to establish a common

market, the functioning of which is of direct concern to interested parties
in the Community, implies that this Treaty is more than an agreement
which merely creates mutual obligations between the contracting
states. This view is confirmed by the preamble to the Treaty which refers
not only to governments but to peoples. It is also confirmed more
specifically by the institutions endowed with sovereign rights, the
exercise of which affects Member States and also their citizens …
In addition to the task assigned to the Court of Justice under Article 177
[now Article 267 TFEU], the object of which is to secure the uniform
interpretation of the Treaty by national courts and tribunals, confirms
that the States which have acknowledged that Community Law has
an authority which can be invoked by their nationals before those
courts and tribunals. The conclusion to be drawn from this is that
the Community constitutes a new legal order of international law
for the benefit of which the States have limited their sovereign
rights albeit within limited fields, and the subjects of which
comprise not only Member States but also their nationals.
Independently of the legislation of Member States, Community Law
therefore not only imposes obligations on individuals but is also
intended to confer upon them rights which become part of their
legal heritage. These rights arise not only where they are expressly
granted by the Treaty, but also by reason of obligations which the Treaty
imposes in a clearly defined way upon individuals as well as upon the
Member States and upon the institutions of the Community. [Emphasis
added.]
This judgment was only concerned with the direct effect of Treaty Articles and
did not address the question of whether provisions of secondary EU legal acts
could be capable of direct effect.
In subsequent judgments, the CoJ held that the three types of binding legal
acts provided for in Article 288 TFEU were capable of direct effect.
In Leonesio v. Ministero dell’ Agricolura delle Foreste [1972] ECR I 287 (Case
93/71),1 the CoJ held that Regulations were capable of direct effect.
Leonesio was a farmer who sought to rely on a Regulation providing for the
payment of a premium designed to encourage farmers from producing milk
products. The Italian Government had not given effect to the Regulation.
In Van Duyn v. Home Office [1974] ECR I-1337 (Case 41/74) the CoJ held that
directives were capable of direct effect and in Franz Grad v. Finanzamt
Traunstei [1970] ECR I 825 (Case 9/70) the CoJ held that Decisions were
capable of direct effect against their addressees.
Some international agreements have also been held to be capable of direct

effect: Bresciani v. Amministrazione delle Finanze [1976] ECR I-129 (Case
87/75).
1 Confrmed by the Supreme Court in Health Service Executive v. W [2013] IESC 38.

General principles of EU law are capable of direct effect: Mangold v. Helm
[2005] ECR I 9981 (Case C-144/04).
The Charter of Fundamental Rights has also been held to be capable of

direct effect: Digital Rights Ireland v. Minister for Communications and Others
(Cases C-293 and 594/12 EU:C:2014:238); Egenberger v. Evangelisches
Werk für Diakonie und Entwicklung (Case C-414/16, EU:C: 2018:257); Stadt
Wupperthal v. Maria Elisabeth Bauer; Volker Willmeroth v. Martina Broβonn
(Cases C-569-570/16, EU:C:2018:871).
The criteria for direct effect were set out by Advocate General Mayras in
Reyners v. Belgium [1974] ECR I-631 (Case 2/74): (1) the provision must be
clear and unambiguous; and (2) unconditional and (3) leave no room for
discretion in its implementation by the EU or the Member States.
An example of the application of the criteria in the Irish Courts is the High Court
decision of Quirke J in McBride v. Galway Corporation [1998] 1 IR 485. It should
be noted that by now there exists a considerable body of EU law setting out
whether particular provisions are directly effective.
4. The Distinction between Vertical and Horizontal Direct Effect

If a legal provision is vertically directly effective an individual may rely on
the provision against the State.
Where a legal provision is horizontally directly effective an individual may

rely on the provision against an individual. In this context individual has a
broad meaning and includes, for example, private companies.
Defrenne v. SABENA (No 2) [1976] ECR I-455 (Case 43/75) provides an

example of horizontal direct effect. The EU legal provision was a Treaty Article
(now found at Article 157 TFEU) which requires Member States to ensure that
the principle of equal pay for male and female workers or work of equal value
is applied. A stewardess with the defendant airline alleged that stewards were
paid more for the same job. The CoJ stated:
39. In fact, since [Article 157 TFEU] is mandatory in nature, the

prohibition on discrimination between men and women applies
not only to the action of public authorities, but also extends to all
agreements which are intended to regulate paid labour
collectively, as well as to contracts between individuals.
40. The reply to the first question must therefore be that the principle
of equal pay contained in [Article 157 TFEU] may be relied upon
before the national courts and that these courts have a duty to
ensure the protection of rights which this provision vests in
individuals, in particular as regards those types of discrimination
arising directly from legislative provisions or collective labour
agreements, as well as in cases in which men and women
receive unequal pay for equal work which is carried out in the
same establishment or service, whether private or public.
[Emphasis added.]

The CoJ therefore determined that it was possible to rely on the Treaty
provision horizontally as well as vertically. Free movement of workers, which
features at Article 45 TFEU, is also capable of some horizontal effects2 as will
be discussed in the substantive EU Law section of the Manual.
5. Direct Effect of Directives

In Van Duyn v. Home Office [1974] ECR I-1337 (Case 41/74) the CoJ held
explicitly for the first time that directives were capable of direct effect,
although this was arguably implicit in earlier judgments.
The decision was regarded with some surprise as Article 288 TFEU envisages
national implementing measures in respect of directives. Article 288 TFEU
states that a directive “shall be binding as to the result to be achieved on each
Member State to which it is addressed but shall leave to the national authorities
the choice of form and methods”. Further, Article 288 TFEU draws a distinction
between Regulations which are defined to be “directly applicable” and
directives which are not afforded this characteristic.
Van Duyn was refused entry to the UK for public policy reasons. She was a
Dutch national who had been offered a job in the UK with the Church of
Scientology. She sought to rely on free movement of worker provisions set out
in the Treaty, a regulation, and a directive. The Treaty contains a provision
(Article 45(3) TFEU) limiting the right of free movement of workers on the
grounds of public policy, public security, or public health.
Article 3(1) of Directive 64/221/EEC on the derogations provided “measures

taken on grounds of public policy or public security shall be based exclusively
on the personal conduct of the individual concerned”. Member States’ powers
were curtailed.
The UK Government submitted that the EU political institutions in issuing a

directive intended that the directive should have a different effect to that of a
regulation and that directives were not directly effective. The CoJ stated (at
[12]):
If, however, by virtue of the provisions of Article [288 TFEU] Regulations

are directly applicable and, consequently, may by their very nature have
direct effects, it does not follow from this that other categories of
acts mentioned in that article can never have similar effects. It
would be incompatible with the binding effect attributed to
directives by Article [288 TFEU] to exclude in principle, the possibility
that the obligation which it imposes may be invoked by those
concerned. In particular, where the Community authorities have, by
directive, imposed on Member States the obligation to pursue a
particular course of conduct, the useful effect of such an act would
be weakened if individuals were prevented from relying on it
before their national courts and if the latter were prevented from
taking it into consideration as an element of Community law.
2See Walrave and Koch v. Association Union Cycliste Internationale [1974] ECR 1405 (Case
36/74), Union Royale des Sociétés de Football Association v. Bosman [1995] ECR I 4921 (Case
C-415/93), and Angonese v. Cassa di Riparimo di Bolzano SpA [2000] ECR 4139 (Case C-
281/98).

Article [Article 267 TFEU], which empowers national courts to refer to
the Court questions concerning the validity and interpretation of all acts
of the Community institutions, without distinction, implies furthermore
that these acts may be invoked by individuals in the national courts. It
is necessary to examine, in every case, whether the nature, general
scheme and wording of the provision in question are capable of
having direct effects on the relations between Member States and
individuals. [Emphasis added.]
Van Duyn established that directives are capable of direct effect. The CoJ’s
rationale was an effectiveness or effet utile argument. On the facts of this
case, the CoJ held that while past association with an organisation cannot
justify a refusal of entry, present association with an organisation may be
considered a voluntary act and part of the personal conduct of the individual.
In later cases the CoJ’s reasoning relies more on estoppel, i.e., that a Member
State is estopped from relying on its own failure to implement a directive
correctly or at all. For example, in Pubblico Ministero v. Tullio Ratti [1979] ECR
I-1629 (Case 148/78). The estoppel rationale can be seen in paragraphs 22
and 23 of the CoJ’s judgment.
Ratti had been charged with offences under Italian law of failing to comply with
labelling requirements in respect of solvents. In his defence he argued that he
had complied with two directives governing the labelling of solvents and that he
should be able to rely on these directives in his national Court. The directives
had not been implemented into Italian law. Implementation of one of the
directives would have resulted in the repeal of one of the Italian laws under
which Ratti was prosecuted.
The Court held:
22. Consequently, a Member State which has not adopted the

implementing measures required by the directive in the
prescribed periods may not rely, as against individuals, on
its own failure to perform the obligation which the directive
entails.
23. It follows that a national court requested by a person who has

complied with the provisions of a directive not to apply a
national provision inconsistent with the directive not
incorporated into the internal legal order of the defaulting
Member State, must uphold the request if the obligation in
question is unconditional and sufficiently precise.
[Emphasis added.]
The CoJ held that once the implementation date for a Directive had passed that
a Member State could not rely on its own failure to implement the Directive.
Ratti could rely on the provisions of the directive as a shield in the defence of
proceedings against him. Thus, Italy was estopped from relying on the
provisions of its national law which were not compatible with the directive.3
3In UH v. An tAire Talmhaíochta Bia agus Mara, Éire agus an tArd-Aighne (Case C-64/20), the
Court of Justice held that Member State courts cannot disregard the obligation imposed on
Member States to transpose a directive on the ground that that transposition is disproportionate
due to forthcoming changes in the requirements arising from EU Law. The reference related to

It is important to recognise that the concept of direct effect can be relied on by
both plaintiffs and defendants to legal proceedings. This is sometimes referred
to as using direct effect as a sword (where it is the plaintiff who seeks to rely
on the direct effect of a directive) or as a shield (where it is the defendant who
seeks to rely on the direct effect of directives).
The Ratti judgment is also the basis for an additional criterion to that set out
in Reyners which must be satisfied in order for a directive to be capable of direct
effect, namely, that the time limit for implementation of the directive must
have passed. The implementation date for the second directive at issue in Ratti
had not passed. Thus, the CoJ held (at [46]):
Since a directive by its very nature imposes obligations only on Member

States, it is not possible for an individual to plead the principle of
“legitimate expectation” before the expiry of the period prescribed for
its implementation. [Emphasis added.]
The CoJ has indicated that obligations may even arise for Member States
before the expiry of the transposition date. In Inter-Environnement Wallonie
[1997] ECR I -7411 (Case C-129/96), the CoJ stated at paragraph 45, that
during the period prescribed for the transposition of a directive the Member
States must refrain from taking any measures liable seriously to compromise
the result prescribed by the directive.4
Furthermore, in ATRAL v. Belgium [2003] ECR I-4431 (Case C-14/02) the

Court of Justice clarified that the Inter-Environnement Wallonie obligation to
refrain from taking measures liable to compromise the result of the directive
arises irrespective of whether or not the national rule adopted after the
directive entered into force is concerned with the transposition of the
directive at issue.
In Mangold v. Helm [2005] ECR I 9981 (Case C-144/04), the CoJ seemed to
suggest that a Member State could not enact legislation representing a
retrograde step during the transposition period5. The CoJ stated that there was
an obligation to disapply any national law in conflict with a directive
giving expression to a general principle of EU law, although the period for
transposition of the directive had not yet expired.
A preliminary reference was made in proceedings concerning a fixed term

contract where Mr Mangold was employed by Mr Helm.
A German law provided that a fixed-term contract did not require objective
justification if, when starting the fixed-term contract, the employee had reached
Ireland’s transposition of various articles of Directive 2001/82/EC on the Community code

relating to veterinary medicinal products. The Directive contained an obligation on Member
States to provide information in all the official languages of the Member State in which the
product is marketed. The applicant contended that this included Irish, notwithstanding national
transposing measures that provided that information may be provided in one or other of the
official languages of the Member State.
4 This jurisprudence was reaffirmed by the First Chamber of the Court in Association France
Nature Environnement (C-379/15, EU:C:2016:603) (July 28, 2016), in which the Court provided
clarification on the power of national courts to maintain, in exceptional cases, certain effects of
a national measure incompatible with EU law.
5 Mangold is an unusual decision, as it arises between two individuals and where the CoJ held
that general principles of law might be capable of direct effect.

the age of 52 years. Mr. Mangold was 56 years when he concluded the contract
with Mr. Helm and the contract was concluded prior to the expiry of the period
for transposing Directive 2000/78 establishing a general framework for equal
treatment in employment and occupation.
The national court asked whether Article 6(1) of the Directive must be
interpreted as precluding a provision of domestic law which authorised, without
restriction, unless there was a close connection with an earlier contract of
employment of indefinite duration concluded with the same employer, the
conclusion of fixed-term contracts of employment once the worker has reached
the age of 52.
The CoJ determined that in so far as the national legislation takes the age of
the worker concerned as the only criterion that it went beyond what was
appropriate and necessary to achieve the objective of vocational integration of
unemployed older workers. The CoJ therefore determined that the national
legislation could not be justified under Article 6(1) of Directive 2000/78. The
CoJ considered that:
66. The fact that, when the contract was concluded, the period
prescribed for the transposition into domestic law of
Directive 2000/78 had not yet expired cannot call that
finding into question. [Emphasis added.]
The German court was obliged to disapply the conflicting national law. The
decision in Mangold is an unusual one6 in that it requires a national court to set
aside a provision of national law, where the national law was in conflict with a
Directive where the transposition date of the directive had not yet passed and
therefore according to the Ratti rationale is not capable of direct effect until the
expiry of the transposition period.
It is, however, the recognition of non-discrimination on the grounds of age as a

general principle of EU law which is the rationale for requiring the setting aside
of national law. This can be seen from the CoJ’s reasoning that the Directive
gives expression to the general principle. Thus, it is not the Directive which
requires the disapplication of contradictory national law but the general
principle. It must be remembered that the general principles rank behind the
Treaties and the EU Charter of Fundamental Rights but above all other EU laws
in the hierarchy of EU law norms. It is also unusual in that it arose in the context
of a dispute between private parties.
Società Edilizia Turistica Alberghiera Residenziale (SETAR) SpA v. Comune di

Quartu S. Elena ECLI:EU:C:2014:2467 (C-551/13) concerned the transposition
of a Waste Management Directive in Italy. The CoJ determined that the
Directive precluded national legislation, such as that at issue in the main
proceedings, which transposes into national law a provision of that Directive,
but the entry into force of which is deferred pending the adoption of a
subsequent internal measure, if that entry into force takes place after the
end of the transposition period prescribed by the Directive.
6Craig and de Búrca (EU Law: Text, Cases and Materials (4th ed., Oxford University Press,
2007)) describe it (at 282) as a “curious case”.

5.1 Directives do not have horizontal direct effect
The CoJ has determined that there is no horizontal direct effect of directives,
i.e., it is not possible to rely on an unimplemented directive against an
individual.
In Marshall v. Southampton and South-West Hampshire Area Health Authority

(Teaching) (No.1) [1986] ECR I-723 (Case 152/84) it was held that it was not
possible for an individual to rely on a directive against another individual. The
plaintiff was an employee of the Southampton Health Authority. She sought to
rely on the Equal Treatment Directive. She objected to the fact that she was
required to retire at 60 while her male counterparts could work until 65. The
CoJ held:
48. With regard to the argument that a Directive may not be relied
upon against an individual, it must be emphasised that
according to [Article 288 TFEU] Treaty the binding nature of a
Directive, which constitutes the basis for the possibility of relying
on the Directive before a national court, exists only in “relation
to each Member State to which it is addressed.” It follows
that a directive may not of itself impose obligations on an
individual and that a provision of a directive may not be relied
upon as such against such a person. It must therefore be
examined whether, in this case, the respondent acted as an
individual. [Emphasis added.]
The CoJ went on to consider the nature of the Southampton and South-West
Hampshire Area Health Authority:
49. … where a person involved in legal proceedings is able to rely

on a directive as against the State he may do so regardless of
the capacity in which the latter is acting, whether employer or
public authority. In either case it is necessary to prevent the
Stated from taking advantage of its own failure to comply
with Community law.
50. It is for the national court to apply those considerations to

the circumstances of each case; the Court of Appeal has
however stated in the order for the reference that the
respondent, Southampton and South-West Hampshire Area
Health Authority (Teaching) is a public authority. [Emphasis
added.]
The CoJ held that it was possible to rely on the directive as against the
Southampton and South-West Hampshire Area Health Authority. Thus, while
it is only possible to rely on the direct effect of directives against the State
(vertical direct effect), the CoJ is willing to give the State a broad interpretation
for this purpose. The CoJ includes “emanations of the State” as part of the
State for the purpose of direct effect of directives.
In Foster v. British Gas plc [1990] ECR I 3313 (C-188/89), the CoJ indicated
that it will to determine the categories of persons against whom the provisions
of the directive may be relied on but it is for the national courts to decide
whether a particular body falls within the CoJ’s categories. The CoJ (at [20])
formulated a general test:

It follows …that a body whatever its legal form, which has been made
responsible, pursuant to a measure adopted by the state, for
providing a public service under the control of the State and has for
that purpose special powers beyond those which result from the
normal rules applicable in relations between individuals is included in
any event among the bodies against which the provisions of a directive
capable of having direct effect may be relied upon. [Emphasis added.]
Thus, an additional (fourth) criterion arguably to be satisfied before a directive

may be relied upon, namely, that the action must be against the State or an
emanation of the State.
Albatros Feeds v. Minister for the Environment [2007] 1 IR 221 illustrates that
it is not be possible for the State to rely on an unimplemented directive against
a private individual.
In Coppinger v. Waterford County Council [1998] 4 IR 220, the High Court

(Geoghegan J) held that Waterford County Council was an emanation of the
State.
There are several Irish cases concerning the issue of whether the Motor
Insurers’ Bureau of Ireland (the MIBI) is an emanation of the State. In the UK
the issue arose in respect of the equivalent body there, the Motor Insurers'
Bureau (the MIB). The difficulty for national courts to determine whether a body
is an emanation of the State is illustrated by these cases.
In a preliminary reference from the Irish High Court the CoJ in Farrell v. Whitty,
Minister for the Environment, Ireland, Attorney General, and Motor Insurers'
Bureau of Ireland [2007] ECR I 3067 (Case C-356/05), held that it was for the
national court to determine whether that provision may be relied upon against
a body such as the MIBI. The High Court took the view that the MIBI was an
emanation of the State; Farrell v. Whitty [2008] IEHC 124. That decision was
appealed to the Supreme Court.
In Farrell v. Whitty [2015] IESC 39, the Supreme Court made a further
preliminary reference about the Foster test (Case C-413/15). It asked:
1. Whether the elements of the test in Foster v British Gas plc (Case
C-188/89) as to emanation of a State were to be read conjunctively
or disjunctively?
2. Whether there was a fundamental principle underlying the separate
factors identified in Foster which a court should apply in reasoning
an assessment as to whether a specified body is an emanation of
the State, and;
3. Whether it was sufficient that a broad measure of responsibility had
been transferred to a body by a member state for the ostensible
purpose of meeting obligations under European law for that body to
be an emanation of the member state or was it also necessary that
such a body had (a) special powers or (b) operated under direct
control or supervision of the member state?
The Court of Justice (Grand Chamber) delivered its judgment on October 10,
2017 (Farrell v. Whitty & Ors. ECLI:EU:C:2017:745 (Case C-413/15)).
Regarding the Foster test, the Court held:

27 Paragraph 20 of [Foster] must be read in the light of
paragraph 18 of the same judgment, where the Court stated that such
provisions can be relied on by an individual against organisations or
bodies which are subject to the authority or control of the State or have
special powers beyond those which result from the normal rules
applicable to relations between individuals.
28 Accordingly . . . the conditions that the organisation concerned

must, respectively, be subject to the authority or control of the State,
and must possess special powers beyond those which result from the
normal rules applicable to relations between individuals cannot be
conjunctive (see, to that effect, judgments of 4 December
1997, Kampelmann and Others, C-253/96 to C-258/96,
EU:C:1997:585, paragraphs 46 and 47, and of 7 September
2006, Vassallo, C-180/04, EU:C:2006:518, paragraph 26).
29 . . . . Article 288 TFEU must be interpreted as meaning that it

does not, in itself, preclude the possibility that provisions of a directive
that are capable of having direct effect may be relied on against a body
that does not display all the characteristics listed in paragraph 20 of the
judgment of 12 July 1990, Foster and Others (C-188/89,
EU:C:1990:313), read together with those mentioned in paragraph 18
of that judgment. [Emphasis added]
As regards the substance of this matter, the Court held (at [42]:
. . . provisions of a directive that are capable of having direct effect may

be relied on against a private law body on which a Member State has
conferred a task in the public interest, such as that inherent in the
obligation imposed on the Member States by Article 1(4) of the Second
Directive, and which, for that purpose, possesses, by statute, special
powers, such as the power to oblige insurers carrying on motor vehicle
insurance in the territory of the Member State concerned to be members
of it and to fund it.
5.2 Creation of Anomalies
The Marshall judgment creates a distinction that is based not on the nature of
the provision but rather on the nature of the parties involved in the dispute. The
lack of horizontal direct effect of directives differentiates between potential
claimants on the basis of whom they seek to rely on EU law against, yet
many emanations of the State may have no more control over implementing
measures than private individuals. Thus, it seems difficult to justify the
imposition of such a burden on public bodies that do not bear responsibility to
transpose directives.
In addition, it is possible that the level of State involvement in the public sector
may vary from State to State. Thus, the lack of horizontal direct effect of
directives may result in persons in similar circumstances in different Member
States being treated differently.
5.3 Alternatives
However, the lack of horizontal direct effect does not mean that directives can
never have an impact in disputes between individuals, owing to other doctrines

which have been developed by the CoJ, namely, Indirect Effect (the duty of
harmonious interpretation), State Liability and Incidental Horizontal Effect.
In addition, while the CoJ has consistently maintained that directives do not
have horizontal direct effect a number of cases in recent years have made it
harder to draw a distinction between when it is possible for unimplemented or
incorrectly implemented directives to impose obligations on individuals and
when it is not possible.
6. Indirect Effect/The Duty of Consistent or Harmonious

Interpretation
The concept of indirect effect was developed by the CoJ in the decisions in von
Colson v. Land Nordrhein-Westfalen [1984] ECR I-1891 (Case 14/83) and Harz
v. Deutsche Tradax GmbH [1984] ECR I-1921 (Case 79/83).
Indirect effect imposes an interpretative duty on national courts to interpret

national law in accordance with EC law.7 Its introduction pre-dates the
Marshall ruling and it places the requirement on national courts to interpret
national law in the light of the wording and effect of the unimplemented
or an incorrectly implemented directive.
In Von Colson and Harz the CoJ held that provisions of Council Directive
76/207/EEC on equal treatment for men and women as regards access to
employment and vocational training were not sufficiently clear and precise
enough to be directly effective (two essential conditions of the direct effect test
outlined above). The CoJ nevertheless held that national courts had an
obligation to interpret national legislation implementing the Directive in
conformity with Community law8.
Von Colson sought to rely on the Directive against a public authority while Harz
sough to rely on it against a private company, thus interpretative obligations
arose in respect of both vertical and horizontal situations. Unimplemented or
incorrectly implemented directives thus could impose obligations on
individuals.
Von Colson and Harz concerned implementing legislation, however, in

Marleasing SA v. La Comercial Internacional de Alimentaction SA [1990] ECR
I-4135 (Case C-106/89) the principle of indirect effect was extended beyond
legislation implementing the directive. The CoJ held that the obligation to
interpret national law in light of a directive extends to national legislation pre-
dating the directive. The CoJ held (at [8]):
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. [Emphasis added.]
7 See Stadt Wuppertal v. Bauer C-569/16; ECLI:EU:C:2018:871, Max-Planck-Gesellschaft zur

Förderung der Wissenschaften C-684/16, EU:C:2018:874, and Abanca Corporacion Bancaria
Case C-70/17; ECLI:EU:C:2019:250.
8 See [28].

In Pfeiffer v. Deutches Rotes Kreuz [2004] ECR I-8835 (Joined Cases C-397-
403/01), the CoJ stated (at [119]) that it was necessary to consider the whole
body of national rules and interpret them in the light of the Directive:
[W]hen hearing a case between individuals, a national court is required,

when applying the provisions of domestic law adopted for the purpose
of transposing obligations laid down by a directive, to consider the
whole body of rules of national law and to interpret them as far as
possible, in the light of the wording and the purpose of the Directive in
order to achieve an outcome consistent with the objective pursued by
the Directive … [Emphasis added.]
In Nathan v. Bailey Gibson Ltd [1998] 2 IR 162, Hamilton CJ spoke of an

obligation to interpret the Anti-Discrimination Pay Act, 1974 in the light of the
directive the national law sough to implement. In Eircom Limited v. Commission
for Communication Regulations [2007] 1 IR 1, Irish legislation was interpreted
by High Court in the light of the directives the legislation purported to implement
to allow a broader right of appeal. McKechnie J stated “that the court was
obliged to interpret [the statutory instruments] which ...were passed in order to
incorporate the ... directives into national law, in a manner, so far as is possible,
in conformity with the directives....”
The significance of indirect effect is even more apparent from the decision
in Smith v. Meade & Anor. [2009] 3 IR 335 where Peart J, applying the
principles of indirect effect and primacy of EU law, determined that exclusion
clauses in insurance contracts were void. This resulted in a directive having a
significant impact on a private party (the insurance company).
However, in the Court of Appeal9, Hogan J “respectfully disagreed” (at [51])

with Peart J., stating it was “simply not possible to interpret these provisions in
a manner which would be compatible with the requirements of the Third
Directive, as to do otherwise would be to adopt an interpretation which would
be contra legem and which would do violence to the actual wording of both
provisions.”
The Court of Appeal made a preliminary reference to the Court of Justice 10

asking, inter alia, whether the national court, when disapplying the relevant
provisions of national law, was also obliged to disapply the exclusion clause
contained in the motor insurance policy which was in force at the time such that
the injured victim could then have recovered directly as against the insurance
company on foot of that policy. Alternatively, the reference seeks to ascertain
whether such a result would amount in substance to a form of horizontal direct
effect of a Directive against a private party in a manner prohibited by EU law.
The Court of Justice (Grand Chamber) delivered its judgment on August 7,

2018 (Smith v. Meade & Ors. ECLI:EU:C:2018:631 (C-122/17)) and the
following paragraphs are instructive:
49 . . . a national court, hearing a dispute between private persons,

which finds itself unable to interpret provisions of its national law in a
manner that is compatible with a directive, is not obliged, solely on the
9Smith v. Meade & Anor. [2016] IECA 389.

10Reference for a preliminary ruling from Court of Appeal (Ireland) made on March 9, 2017 —
Smith v. Meade & Ors. (Case C-122/17).

basis of EU law, to disapply the provisions of its national law which are
contrary to those provisions of that directive that fulfil all the conditions
required for them to produce direct effect and thereby to extend the
possibility of relying on a provision of a directive that has not been
transposed, or that has been incorrectly transposed, to the sphere of
relationships between private persons…
55 . . . it must be concluded that, in the main proceedings, the referring

court, which considers that it is unable to interpret Section 65(1)(a) of
the 1961 Act and Article 6 of the 1962 Regulations in a manner that is
compatible with Article 1 of the Third Directive, is not obliged, in order
to determine whether Mr Smith was entitled to claim from FBD
compensation for the harm suffered by him as a result of the road traffic
accident that gave rise to those proceedings, to disapply, solely on the
basis of that provision of the Third Directive, those provisions of national
law as well as the exclusion clause to be found, as a consequence of
those provisions of national law, in the insurance contract taken out by
Mr Philip Meade, and thereby to extend the possibility of relying on a
directive to the sphere of relationships between private persons.
56 That said, it must be recalled that, in a situation such as that at issue

in the main proceedings, a party adversely affected by the
incompatibility of national law with EU law or a person subrogated to
the rights of that party could however rely on the case-law stemming
from the judgment of 19 November 1991, Francovich and Others (C-
6/90 and C-9/90, EU:C:1991:428), in order to obtain from the Member
State, if appropriate, compensation for any loss sustained (see, by
analogy, judgments of 19 April 2007, Farrell, C-356/05, EU:C:2007:229,
paragraph 43, and of 24 January 2012, Dominguez, C-282/10,
EU:C:2012:33, paragraph 43). [Emphasis added]
Thus, there are limits to the interpretative obligation.
In Public Prosecutor v. Kolpinghuis Nijmegen BF [1987] ECR 3969 (Case

80/86) where the Dutch authorities attempted to use provisions of an
unimplemented directive against an individual in the context of criminal
proceedings, the CoJ considered this would breach the principles of legal
certainty and non-retroactivity.
In addition, the interpretative obligation is limited in that it requires Member

States “as far as possible” to interpret national laws in the light of the
unimplemented or incorrectly implemented directive. However, the national
court is not obliged to interpret its national law in a way which would be
incompatible with the relevant national legislation.11
In Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16, in
the context of the Supreme Court decision refusing to surrender Mr. Bailey to
France on foot of a European Arrest Warrant, Fennelly J held:
11I.e., a contra legem interpretation is not required, an issue which was discussed (at [60]) by
Fennelly J in Albatros Feeds v. Minister for the Environment [2007] 1 IR 221.

54. The Court recognises that there are two types of limits to the
obligation of the national court:
• Firstly, the court’s obligation is to interpret in conformity with

the framework decision only insofar as that is possible; it is not
obliged to set aside the national law, i.e., it need not act contra
legem;
• Secondly, the interpretative obligation may be subject to limits
derived from general principles of law; in particular, the
obligation does not require the imposition of criminal liability.
The CoJ in Adeneler v. ELOG [2006] ECR I 6057 (Case C-212/04), stated that:
The obligation on a national court to refer to the content of a directive

when interpreting and applying the relevant rules of domestic law is
limited by general principles of law, particularly those of legal certainty
and non-retroactivity, and that obligation cannot serve as the basis
for an interpretation of national law contra legem.
The CoJ held that indirect effect applies after the deadline for implementation
of a directive has passed. Member States only have an obligation to interpret
national law in the light of a directive after the date by which the directive should
have been implemented by that State has passed.
In Adeneler, the CoJ also held that national courts are subject to an obligation
after the date of entry into force of a directive but prior to its transposition date
to refrain from interpreting domestic law in a manner which might seriously
compromise, after the transposition date the attainment of the directive’s
objective. (This obligation is similar to the Inter-Environement Wallonie
obligation, that during the period prescribed for the transposition of a directive,
the Member States must refrain from taking any measures liable seriously to
compromise the result prescribed by the directive.)
Chalmers considers that “[t]here is thus a tiered obligation on national courts.

The full force of the duty to interpret only takes effect from the date of
transposition. Prior to that, there is a more limited duty. National courts must
interpret national law in such manner that it does not compromise realisation of
the directive’s objective from the end of the transposition period. The meaning
of this obligation is very unclear.”12 A recent discussion of the contra legem
principle can be found in McKechnie J’s judgment in The Minister for Justice &
Equality v. Vilkas [2018] IESC 69.
An Irish case discussing this issue is Power v. Guardian PMPA Insurance Ltd.
[2007] IEHC 105.
In Impact v. Minister for Agriculture [2008] ECR I 2483 (Case C-268/06), the
Irish Labour Court referred a question seeking to determine whether it was
under an obligation, by virtue of its obligation to interpret domestic law in
conformity with EU law, to give the domestic law which belated transposed a
directive retrospective effect to the date by which that directive should have
been transposed. The referring court had indicated that, while national
legislation did not expressly preclude a retrospective construction, a domestic
12Chalmers, Davies and Monti, European Union Law, Text and Materials (2nd ed, Cambridge
University Press, 2010) page 299.

rule of construction did preclude the retrospective application of legislation
unless there is a clear and unambiguous indication to the contrary. The CoJ
confirmed one of the limits on the interpretative obligation; that the obligation
cannot serve as the basis for an interpretation of national law contra legem.
In OCS One Complete Solution Limited v. Dublin Airport Authority Plc. [2014]
IEHC 306, Barrett J summarised the principles applicable in interpreting
national law in the light of Directives:
13. The various European Union law requirements mentioned above

might usefully be summarised as follows. First, national courts are
required to interpret national law in the light of directives, including any
directive the time limit for implementation of which has expired but
which remains unimplemented in a particular Member State. Second,
this obligation applies even to legislation that pre-dates a directive and
has no ostensible connection with same. Third, the obligation applies to
the entirety of a national legal system. Fourth, the principle of
harmonious interpretation cannot result in aggravated criminal liability
for an individual. Fifth, the application of harmonious interpretation may
result in the imposition of civil liability on a private party. Sixth, the
obligation as to harmonious interpretation does not require a contra
legem interpretation of national law. Seventh, not mentioned above,
though extant under Article 4(3) of the Treaty on European Union, and
affirmed by Fennelly J. In Dellway Investments v. NAMA [2011] 4 I.R.
1, is the court’s obligation to apply the principle of sincere cooperation
whereby the European Union and the Member States are each obliged,
amongst other matters, to ensure fulfilment of obligations arising from
the acts of European Union institutions, to facilitate the achievement of
the European Union’s objectives and to refrain from any measure which
could jeopardise the attainment of the European Union’s objectives.
Any consideration of the traditional principles of statutory interpretation
must, in cases that are concerned with the interpretation of domestic
laws that have their provenance in European Union law, be done in the
context of, and in compliance with, these requirements of European
Union law.
On appeal, OCS One Complete Solutions Limited v Dublin Airport Authority plc.
[2015] IESC 6, Clarke J, for the Supreme Court, stated:
5.1 …. The principle of harmonious interpretation was developed by the

ECJ in Case 14/83 Von Colson and Kamman v. Land Nordhein-
Westfalen [1984] ECR 1891 …
5.3 …there may be circumstances where, on a proper interpretation of

a directive, a Member State is left with some degree of discretion or
margin of appreciation as to the manner in which it may implement its
obligations under the relevant directive. In accordance with European
Union law a court should, unless it is impossible to do otherwise, ensure
that the interpretation of domestic implementing law is not inconsistent
with the directive. However, where the relevant directive is not
mandatory in respect of any particular aspect of a regime then it will be
a matter of construing national law (including implementing measures)
to determine the applicable legal position subject only to the overriding
consideration that the result of any interpretation of national law should,

to the greatest extent possible, leave national law in conformity with the
requirements of the directive. [Emphasis added.]
In Criminal Proceedings against Maria Pupino [2005] ECR I 5285 (Case C-

105/03), the CoJ held that “framework decisions” a type of act under the Third
Pillar (expressly defined by the Treaty pre-Lisbon not to entail direct effect),
were binding and could be applied in national courts to influence the
interpretation of national law to be read in conformity with the directive. In other
words, Third Pillar measures were held by the CoJ to be capable of indirect
effect, and national courts were obliged to interpret national laws in the light of
these measures. The Third Pillar no longer exists post-Lisbon and the different
types of legal acts provided for under that Pillar have been abolished.
The effect of the Pupino principle in the context of a European arrest warrant
application was explained (at 156) by Murray CJ in Minister for Justice Equality
and Law Reform v Altaravicius [2006] 3 IR 148 as follows:
When applying and interpreting national provisions giving effect to a

framework decision the courts "must do so as far as possible in this light
of the wording and purpose of the Framework Decision in order to attain
the result which it pursues" (see Criminal proceedings against Pupino
(Case C-105/03) [2005] E.C.R. I-05285). The principle of conforming
interpretation is limited, as the Court of Justice has pointed out in
Pupino and other cases, to the extent that it is possible to give such an
interpretation. It does not require a national court to interpret national
legislation contra legem. If national legislation, having been interpreted
as far as possible in conformity with community legislation to which it
purports to give effect, but still falls short of what is required by the latter,
a national court must, as a general principle, apply that legislation
as interpreted although there may be other consequences for a
member state which has failed to fully implement a directive or
framework decision. [Emphasis added.]
6.1 Incidental Horizontal Effect
The recent development of the principle called “incidental horizontal effect”13

by some commentators can be seen in CIA Security International Sav
Signalson SA and Securitel SPRL [1996] ECR I-2201 (Case C-194/94) Unilever
Italia SpA v. Central Food SpA [2000] ECR I-7535 (Case C-443/98). This
principle allows a directive to be invoked in a horizontal situation to
disapply a contradictory national law where the directive does not itself
confer rights. The difference between horizontal direct effect of directives, the
existence of which is denied by the CoJ and incidental horizontal effect which
may have the impact of imposing obligations on individuals is difficult to explain.
In Smith v. Meade EU:C:2018:631 (Case C-122/17 ) the CJEU, having

reaffirmed that a directive has no horizontal direct effect in the context of an
insurance claim arising out of a van in a road traffic accident, distinguished the
CIA/Unilever jurisprudence from this case:
53 In that particular situation, the Court held, in essence, that those

national technical regulations were inapplicable in a dispute between
13 Craig and De Búrca, at 296.

individuals on the ground that non-compliance with the obligations
stemming from Directive 83/189 constituted a ‘substantial procedural
defect’ that had vitiated the adoption of those regulations by the
Member State concerned, and that that directive, which created neither
rights nor obligations for individuals, did not determine the substantive
content of the legal rule on the basis of which the national court had to
decide the case before it, meaning that the case-law to the effect that a
directive that has not been transposed may not be relied on by one
individual against another was not relevant in such a situation…
54 However, the situation in the main proceedings is not comparable

to that described in the two preceding paragraphs of the present
judgment. Article 1 of the Third Directive, in providing that it is
compulsory that insurance against civil liability in respect of the use of
the motor vehicle at issue should cover personal injury to all the
passengers, excluding the driver, that results from that use, defines the
substantive content of a rule of law and falls, consequently, within the
scope of the case-law to the effect that a directive that has not been
transposed or has been incorrectly transposed may not be relied on by
one individual against another.”
6.2 State Liability
The CoJ has developed the principle of State Liability. Individuals can bring
actions in national courts for infringements of European Law by national
governments. One example of the type of infringement where an individual can
bring an action against a Member State is for loss suffered as a result of a
failure to implement a directive. While State Liability is a broader concept and
applies to other types of infringements it could be an alternative for a litigant
who is unable to rely on a directive owing to a lack of horizontal direct effect.
The CoJ has emphasised that State Liability may apply irrespective of whether
a provision is directly effective or not.14 It should not, therefore, be viewed only
as potential litigation tool in the alternative to the lack of horizontal direct effect
of directives. State Liability is explored in more detail in the next chapter.
6.3 Triangular Situations
Case Wells (R v. Secretary of State for Transport, Local Government and the
Regions, ex parte Wells) [2004] ECR I 723 (C-201/02) concerned a Directive
which required Member States to carry out environmental assessments prior to
planning permission being afforded. Planning permission was afforded to a
mining company without the environmental impact assessment having taken
place. Ms Wells sought the revocation of the planning permission arguing that
the Directive had not been complied with. The CoJ stated:
57. ...mere adverse repurcussions on the rights of third parties ,

even if the repurcussions are certain, do not justify preventing
an individual from invoking the provisions of the Directive
against the Member State concerned...
14 Brasserie du Pecheur v. Federal Republic of Germany and R v. Secretary of State for

Transport ex parte Factortame Limited [1996] ECR I 1029 (Joined Cases C-46/93 and C-48/93),
at [22].

58. In the main proceedings, the obligation on the Member State
concerned to ensure that the competent authorities carry out an
assessment of the environmental effects of working the quarry
is not directly linked to the performance of any obligation which
would fall, pursuant to [the Directive] on the quarry owners. The
fact that mining operations may be halted to await the results of
the assessment is admittedly the consequence of the belated
performance of that State’s obligations. Such a consequence
cannot, however, as the United Kingdom claims be described
as “inverse direct effect” of the provisions of that directive in
relation to the quarry owners.
Ms Wells, in requiring the Member State to comply with the Directive, was
impacting on the mining company’s right to quarry. The CoJ did not see this
as imposing an obligation on the mining company. Nevertheless, it is apparent
that there was an impact on the third party, the mining company.
7. Interaction of the Principles of Indirect Effect, Direct Effect

and State Liability
In Dominguez v. Centre informatique du Centre Ouest Atlantique

ECLI:EU:C:2012:33 (Case C-282/10), the CoJ considered the interaction of the
principles of indirect effect and direct effect and the interaction of direct effect
and state liability. The dispute concerned Ms Dominquez’s claim against her
employer for an entitlement to paid annual leave during an absence from work
after an accident.
The CoJ reiterated the obligation on national courts to interpret national laws in
the light of a Directive. The CoJ stated at paragraph 32:
If such an interpretation is not possible, it is necessary to consider

whether Article 7(1) of Directive 2003/88 has a direct effect and if so,
whether Ms. Dominquez may rely on that direct effect against the
respondents in the main proceedings, in particular her employer, the
CICOA, in view of their legal nature.
The CoJ considered that the relevant provision of the Directive was
unconditional and sufficiently precise to be directly effective. The CoJ
determined that it was for the national court to determine whether Article 7(1)
of Directive 2003/88 could be relied upon as against the CICOA. The CoJ then
explained the consequence of the national court finding that (a) it could be
relied upon as against the employer or (b) that it could not be relied upon as
against the employer:
41. If that is the case, as Article 7 of Directive 2003/88 fulfils the

conditions required to produce a direct effect, the consequence would
be that the national court would have to disregard any conflicting
national provision.
42. If that is not the case, it should be borne in mind that even a clear,
precise and unconditional provision of a directive seeking to confer
rights or impose obligations on individuals cannot of itself apply in

proceedings exclusively between private parties (see Pfeiffer and
Others, paragraph 109).
43. In such a situation, the party injured as a result of domestic law not
being in conformity with European Union law can none the less rely on
the judgment in Francovich and Others [1991] ECR I-5357 (Joined
Cases C-6/90 and C-9/90) in order to obtain, if appropriate,
compensation for the loss sustained. [Emphasis added.]
oPecatore, “The Doctrine of Direct Effect: An Infant Disease of
Community Law” (1983) 8 European Law Review 155;
2011), chapter 8;
o Foster on EU Law (6th ed., Oxford University Press, 2017);
o chapter 6, pp. 160-173;
o Craig, “Directives, Direct Effect, Indirect Effect and the Construction of
National Legislation” (1997) 22 EL Rev 519;
o Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963]
ECR I-1 (Case 26/62);
o Defrenne v. SABENA (No 2) [1976] ECR 445 (Case 43/75);
o Van Duyn v. Home Office [1974] ECR 1337 (Case 41/74);
o Pubblico Ministero v. Ratti [1979] ECR 1629 (Case 148/78);
o Marshall v. Southampton and South West Area Health Authority
(Teaching) (No 1) [1986] ECR 723 (Case 152/84);
o Foster v. British Gas Plc [1990] ECR I-3313 (Case C-188/89);
o Unilever Italia SpA v. Central Food SpA [2000] ECR 7535 (Case C
443/98);
o Adeneler v. ELOG [2006] ECR I 6057 (Case C-212/04);
o von Colson v. Land Nordrhein-Westfalen [1984] ECR I-1891 (Case
14/83) and Harz v. Deutsche Tradax GmbH [1984] ECR I-1921 (Case
79/83).

Chapter 5
State Liability in Tort for Breaches of EU Law
1. Required Reading
o Chalmers et al, European Union Law, Text and Materials (3rd ed.,
Cambridge University Press, 2014), pp. 325-335;
of Ireland, 2011), chapter 3;
University Press, 2014), pp. 248-255.
2. Introduction
Member-State liability for breach of EU obligations was first established in the
seminal judgment of Francovich and Bonifaci v. Italy [1991] I ECR 5357 (Joined
Cases C-6/90 and C-9/90). Like supremacy and direct effect, the principle of
State Liability was not contained in the founding Treaties nor is it referred to in
any of the amending Treaties.
The facts of Francovich and Bonifaci v. Italy [1991] I ECR 5357 (Joined Cases
C-6/90 and C-9/90), involved the failure on the part of Italy to transpose a
Directive 80/987, the intention of which is to guarantee employees a minimum
level of protection under EC law in the event of insolvency of their employer.
The plaintiffs were owed wages by their employers, but Italy had not
implemented the directive and had no guarantee scheme in place.
The plaintiff made two arguments: (1) that the provision at issue was directly
effective and (2) in the alternative, a new argument that the Italian State was
liable in damages as a result of the failure to transpose the directive. The CoJ
held that the directive was not directly effective as it was insufficiently clear and
precise in that it did not identify the body liable to provide the guarantee.
The CoJ then considered the novel argument, whether a Member State is liable
in damages, for damage caused by non-transposition of a directive. The
rationale for the Court’s decision was effectiveness. The effectiveness of
European law would be impaired if a system of redress did not exist. While a
system of State Liability is not expressly provided for in the Treaties, the CoJ
held the principle was inherent in the Treaty system and stemming inter alia
from Article 4(3) TFEU, which imposes a duty of loyal co-operation on the
Member States. The CoJ stated (at [37]):
It follows from all the foregoing that it is a principle of Community law

that the Member States are obliged to make good loss and damage
caused to individuals by breaches of Community law for which they can
be held responsible.
Where the breach of EU law constituted a failure to transpose a directive the

CoJ set out three conditions to determine a right to reparation:

The first of those conditions is that the result prescribed by the directive
should entail the grant of rights to individuals. The second condition
is that it should be possible to identify the contents of those rights
on the basis of the provisions of the directive. Finally the third
condition is the existence of a causal link between the breach of the
State’s obligation and the loss and damage suffered by the injured
parties.
Those conditions are sufficient to give rise to a right on the part of

individuals to obtain reparation, a right founded directly on Community
law. [Emphasis added.]
Reparation is to be made on the basis of national law but subject to the

principles of effectiveness and equivalence.
In Konle v. Austria [1999] ECR I-3099 (Case C-302/97), the CoJ held that it is
a matter of national procedural autonomy in a federal system whether
reparation is paid at the central level or at local level.
Prior to the decision in Francovich, there had been a successful Article 258
TFEU enforcement action taken against Italy with respect to the directive. The
CoJ did not, however, make successful infringement proceedings against a
Member State a pre-condition of a State Liability action.
Francovich involved State Liability for failure to transpose directive which

the CoJ held was not directly effective. It is clear from the subsequent case law
that an individual is not obliged to rely on direct effect where this is possible,
but has the option of suing the State in damages (State Liability) regardless of
whether the provision is directly effective or not. The individual has a choice of
which mechanism to use.
The significance of the Francovich judgment cannot be under-stated. By way

of comparison, it was only in the Treaty on European Union, 1992 (the
Maastricht Treaty) which introduced a provision allowing the CoJ to fine
Member States for non-compliance with CoJ rulings.
Transportes Urbanos y Servicios Generales v. Administración (Case C-118/08)

involved a reference from Spain concerning the interpretation of the principles
of effectiveness and equivalence in the light of rules applicable in the Spanish
legal system in respect of an action in damages for state liability. A Spanish
domestic law required the exhaustion of all domestic remedies for challenging
the validity of a harmful administrative measure adopted on the basis of
national legislation. In infringement proceedings, 1 the CoJ had found that
national legislation to be contrary to EU law. The Spanish law required the
exhaustion of domestic remedies prior to an action in state liability where the
impugned measure was contrary to EU Law; however, this exhaustion of
remedies rule would not be applicable to an action in damages against the
State alleging a breach of the Spanish Constitution by national legislation which
has been established by a competent court. The CoJ held that the rule
requiring exhaustion of domestic remedies was precluded.
1 Successful infringement proceedings are not a necessary pre-requisite to an action in

damages in State liability. This was recalled by the CoJ at [38] in Transportes Urbanos.

3. State Liability for Breaches of European Law Other than
Failure to Transpose a Directive
In later cases, the CoJ held that damages are available against Member States
for breaches of European Law, other than a failure to transpose a directive.
In Brasserie du Pecheur v. Federal Republic of Germany and R v. Secretary of

State for Transport ex parte Factortame Ltd [1996] ECR I-1029 (Joined Cases
C-46/93 and C-48/93), the CoJ held that the State could be liable in damages
for enacting national legislation contrary to European Law.
35. The fact that, according to national rules, the breach complained
of is attributable to the legislature cannot affect the requirements
inherent in the protection of the rights of individuals who rely on
Community law and, in this instance, the right to obtain redress
in the national courts for damage caused by that breach.
Two sets of proceeding involving different facts, but similar legal issues, were
joined before the CoJ. Brasserie du Pecheur, a French company was
prevented from exporting beer to Germany as the French beer did not comply
with a German “purity” requirement. In Commission v. Germany [1987] ECR I-
1227 (Case 178/84), the CoJ had held that the German beer purity requirement
breached the free movement of goods provision in ex Article 30 EC (Article 36
TFEU). Factortame involved a challenge to UK legislation which had the
impact that Spanish fishing vessels were prevented from fishing out of UK
ports. The CoJ had previously held in Commission v. UK [1991] ECR I-4585
(Case C-246/89), that the UK legislation was not compatible with European law.
Both Brasserie and Factortame involved breaches of directly effective Treaty

Articles. Some Member States argued that Member States should be liable in
damages only where the provisions breached are not directly effective. The
CoJ stated:
20. The Court has consistently held that the right of individuals to
rely on the directly effective provisions of the Treaty before
national courts is only a minimum guarantee and is not
sufficient in itself to ensure the full and complete
implementation of the Treaty ….The purpose of that right is
to ensure that provisions of Community law prevail over
national provisions. It cannot, in every case, secure for
individuals the benefit of the rights conferred on them by
Community law and, in particular, avoid their sustaining damage
as a result of a breach of Community law attributable to a
Member State. As appears from paragraph 33 of the judgment
in Francovich and Others, the full effectiveness of Community
law would be impaired if individuals were unable to obtain
redress when their rights were infringed by a breach of
Community law.
21. This will be so where an individual who is a victim of the non-

transposition of a directive and is precluded from relying
on certain of its provisions directly before the national
court because they are insufficiently precise and
unconditional, brings an action for damages against the

defaulting Member State for breach of the third paragraph of
Article 189 of the Treaty [later Article 249 EC and post-Lisbon
Article 288 TFEU]. In such circumstances, which obtained in the
case of Francovich and Others, the purpose of reparation is to
redress the injurious consequences of a Member State's
failure to transpose a directive as far as beneficiaries of that
directive are concerned.
22. It is all the more so in the event of infringement of a right directly

conferred by a Community provision upon which individuals are
entitled to rely before the national courts. In that event, the right
to reparation is the necessary corollary of the direct effect
of the Community provision whose breach caused the
damage sustained. [Emphasis added.]
The German Government was critical of the introduction of a right to reparation

without a legislative basis.
4. An Alternative Test for State Liability

The conditions for Member State liability set out in Brasserie/Factortame are
different from those set out in Francovich. The CoJ drew a distinction on the
basis of the level of discretion accorded a Member State. Referring to
Francovich the CoJ emphasised that when directives are adopted the
discretion afforded to Member State legislatures is severely limited. Thus,
Member States have a narrow discretion.
In Brasserie/Factortame the CoJ held that in situations where Member States

have wide discretion (comparable to that of the EU institutions in implementing
EU policies) conditions for Member State liability should be similar to the
conditions for EU liability, the basis for which is Article 340 TFEU2. The CoJ
stated (at [46] and [47]):
That said, the national legislature “like the Community institutions” does
not systematically have a wide discretion when it acts in a field
governed by Community law. Community law may impose upon it
obligations to achieve a particular result or obligations to act or
refrain from acting which reduce its margin of discretion,
sometimes to a considerable degree. This is so, for instance, where,
as in the circumstances to which the judgment in Francovich and Others
relates, [Article 288 TFEU] places the Member State under an obligation
to take, within a given period, all the measures needed in order to
achieve the result required by a directive. In such a case, the fact that
it is for the national legislature to take the necessary measures has no
bearing on the Member State's liability for failing to transpose the
directive.
In contrast, where a Member State acts in a field where it has a wide

discretion, comparable to that of the Community institutions in
implementing Community policies, the conditions under which it
2 Article 340 TFEU sets out rules on contractual liability and non-contractual liability of EU
institutions and the ECB to make good any damage caused by institutions or servants in the
performance of their duties, and personal liability set under Staff Regulations.

may incur liability must, in principle, be the same as those under
which the Community institutions incur liability in a comparable
situation. [Emphasis added.]
The CoJ reasoned that individuals should be provided with uniform protection
whether it is an EU institution or a Member State that is responsible for the
breach. The test for liability under Article 340 TFEU is set out in Zuckerfabrik
Schoppenstedt v. Council [1971] ECR 975 (Case 5/71) (the Schoppenstadt
case).
In Brasserie/Factortame the CoJ held that where a Member State acts in a field
where it has wide discretion comparable to that of political institutions in
implementing EU policies, the conditions under which the Member State may
incur liability must in principle be the same as those under which the EU
institutions incur liability in a comparable situation. One element of the
Schoppenstadt test is that the applicant must prove “that the act consists of a
sufficiently flagrant violation of a superior rule of law”. To determine whether a
breach is sufficiently serious it is necessary to examine whether an EU
institution had manifestly and gravely disregarded the limits on the
exercise of its powers (Bayerische HNL v. Council and Commission [1978]
ECR 1209, 1224 (Joined Cases 83 and 94/76, 4, 15 and 40/77)).
In Brasserie/Factortame both Member States were held to have had a wide

degree of discretion.
The CoJ set out the wide discretion test (at [51]):
(1) the rule of law infringed must have been intended to confer rights
on the individual;
(2) The breach must be sufficiently serious; and
(3) there must be a direct causal link between the obligation resting on
the State and the damage sustained by the injured parties.
It is the middle element of the test which differs from the Francovich test. The
CoJ stated at paragraph 55:
As to the second condition, as regards both Community liability under

[Article 340 TFEU] and Member State liability for breaches of
Community law, the decisive test for finding that a breach of Community
law is sufficiently serious is whether the Member State or the
Community institution concerned manifestly and gravely
disregarded the limits on its discretion. [Emphasis added.]
The CoJ outlined a list of factors to assist in determining whether a sufficiently

serious breach had occurred and stated (at [56] and [57]):
– clarity and precision of the rule breached,

– the measure of discretion left by that rule to the national or
Community authorities,
– whether the infringement and the damage caused was intentional
or involuntary,
– whether any error of law was excusable or inexcusable,
– the fact that the position taken by a Community institution may have
contributed towards the omission,

– the adoption or retention of national measures or practices contrary
to Community law.
– if the breach has persisted despite a judgment finding the
infringement to be established or a preliminary ruling or settled case-
law of the Court on the matter from which it is clear that conduct
constituted an infringement.
5. State Liability for Breaches of European Law Other than

Failure to Transpose a Directive (continued)
In R v. HM Treasury, ex parte British Telecommunications plc [1996] ECR I
1631 (Case C- 392/93) the CoJ held that a Member State could be held liable
in damages for the incorrect implementation of a directive.
An Post ECLI:EU:C:2014:2068 (Case C-244/13) concerned a claim for
damages following Ireland’s failure to properly apply the EU Citizenship
Directive. The case involved the derivative right of a third country national to
permanent residence as the spouse of an EU citizen who had resided in Ireland
for the requisite period of five years. Mr Ogieriakhi had originally been refused
permanent residency in Ireland, but following a CoJ judgment in another case
it became apparent that this refusal was incorrect and he was granted
permanent residency. In the meantime he had lost his job with An Post on the
basis that he did not have residency. The claim for damages was on the basis
of losses sustained on the termination of his employment. During the five year
period, Mr Ogieriakhi had separated from his French wife and both he and his
wife had resided with other partners but remained legally married. The CoJ
determined that a right of permanent residence had been obtained by him.
The preliminary reference also raised an interesting question as regards the

issue of state liability. A national court had found it necessary to seek a
preliminary ruling on a question concerning the EU law at issue in the
proceedings. Must this be considered a decisive factor in determining whether
there was an obvious infringement of that law on the part of the Member State?
The CoJ determined that the seeking of a preliminary reference was not
decisive regarding whether there had been an obvious infringement. The
rationale for this decision was that national courts have wide discretion to make
preliminary references. The simple act of referring a question could not limit the
freedom of the national court ruling on the substance. The answer to the
question of whether an infringement of EU law was sufficiently serious followed
not from action taken on the basis of Article 267 TFEU, but from the
interpretation provided by the CoJ. The system of preliminary references would
be compromised if the decision to make a preliminary reference was a decisive
factor in determining whether or not there had been an obvious infringement of
EU law, in order to appraise, where appropriate, the liability of the Member
State concerned for infringement of EU law. The CoJ considered that such an
effect would compromise the system, the purpose and the characteristics of the
preliminary reference procedure.
In Ogieriakhi v. Minister for Justice and Equality, Ireland, Attorney General and
An Post [2014] IEHC 562, the High Court applied the state liability test. The
High Court determined that Article 16 of the Citizenship Directive was designed
to confer rights on individuals, that there had been a sufficiently serious breach

and that there was a causal link between the damage suffered by Mr Ogieriaki
and the breach of EU law. The test was therefore satisfied and Mr Ogieriaki
was awarded damages in the sum of €127,905.
The Court of Appeal, however, overturned the decision of the High Court in its
entirety (Ogieriakhi v. Minister for Justice and Equality & Ors. [2016] IECA 46).
That Court considered that the conditions for the jurisdiction to award damages
for failure to implement EU measures had not been met. In finding that the
breach by the State was not sufficiently serious, the Court ruled that the mistake
had been honest and excusable, and found that the Directive had not been
sufficiently clear and precise to give rise to liability for the error in interpretation.
The Court of Appeal further held that there was no applicable national legal
principle under which the appellant was entitled to damages for what had
happened to him.
The appellant was then granted leave to appeal to the Supreme Court and, in
its judgment(Ogieriakhi v. Minister for Justice and Equality & Ors. [2017] IESC
52), O’Malley J dismissed the appellant’s appeal. She held, among other
things, that the test for state liability, as set out in Factortame, was not satisfied
in circumstances where the decision of the Minister was in breach of Directive
2004/38 EC as the second limb of the test was not met.
The Court noted (at [101]):
The issue of liability in damages falls to be considered by reference to

the criteria set out in Brasserie du Pêcheur and Factortame. It is clear
that, by reference to those criteria, it is not sufficient for an aggrieved
person to establish as a fact that the State misunderstood or misapplied
a provision of EU law and that he or she suffered loss as a result. On
the other hand, it does not suffice for a successful defence to a claim of
this nature that officials acted honestly on foot of a misapprehension
that was not “bizarre or eccentric”. Having regard to paragraph 2 of the
conclusions in Brasserie du Pêcheur those considerations cannot be all
that is required to establish excusability, and in my view the decision of
the Court of Appeal lays too great an emphasis on them. Good faith is
certainly relevant to the extent that a finding of improper motivation
would probably be decisive as against the State, as counsel for the
State parties accepts. However, good faith and honest
misapprehension cannot be sufficient to excuse the State from liability
in an appropriate case. Similarly, a mistake as to the true meaning of a
legal measure might be shared with the authorities of one or more other
Member States, and yet, objectively, be clearly wrong. [Emphasis
added.]
A Member State may also be guilty of breaching Community law through a non-
legislative action. In R v. Ministry for Agriculture, Fisheries and Food ex parte
Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 (Case C-5/94), the CoJ held
that a Member State could be held liable in damages for an administrative
decision contrary to EC Law.

6. Is There Only One Test?
The CoJ in Dillenkofer v. Germany [1996] ECR I 4845 (Joined Cases C-178/94,
C-188/9e4, C-189/94 and C-190/94) expressed the view that the two tests
(the Francovich narrow discretion test and the Brasserie wide discretion
test) are substantially the same:
23. In substance, the conditions laid down in that group of

judgments [Francovich, Brasserie/Factortame, British
Telecommunications and Hedley Lomas] are the same,
since the condition that there should be a sufficiently
serious breach, although not expressly mentioned in
Francovich, was nevertheless evident from the
circumstances of that case.
24. When the Court held that the conditions under which State
liability gives rise to a right to reparation depended on the nature
of the breach of Community law causing the damage, that
meant that those conditions are to be applied according to
each type of situation.
25. On the one hand, a breach of Community law is sufficiently

serious if a Community institution or a Member State, in the
exercise of its rule-making powers, manifestly and gravely
disregards the limits on those powers (see HNL and Others v
Council and Commission [1978] E.C.R. 1209 (Joined Cases
83/76, 94/76, 4/77, 15/77 and 40/77), paragraph 6; Brasserie du
Pêcheur and Factortame, paragraph 55; and British
Telecommunications, paragraph 42). On the other hand, if, at
the time when it committed the infringement, the Member State
in question was not called upon to make any legislative choices
and had only considerably reduced, or even no, discretion, the
mere infringement of Community law may be sufficient to
establish the existence of a sufficiently serious breach (see
Hedley Lomas, paragraph 28).
26. So where, as in Francovich, a Member State fails, in breach of

the third paragraph of Article 189 of the Treaty [Article 249 EC,
Article 288 TFEU], to take any of the measures necessary to
achieve the result prescribed by a directive within the period it
lays down, that Member State manifestly and gravely disregards
the limits on its discretion.
27. Consequently, such a breach gives rise to a right to reparation

on the part of individuals if the result prescribed by the directive
entails the grant of rights to them, the content of those rights is
identifiable on the basis of the provisions of the directive and a
causal link exists between the breach of the State's obligation
and the loss and damage suffered by the injured parties: no
other conditions need be taken into consideration. [Emphasis
added.]
Dillenkofer involved the non-implementation of a directive and the CoJ

considered that non-implementation of a directive satisfied the sufficiently

serious element of the test. It seemed to suggest that non-implementation was
per se a sufficiently serious breach.
In Brinkmann Tabakfabriken GmbH v. Statteministeriet [1998] ECR I-5255

(Case C-319/96) the CoJ stated (at [28]-[30]):
It is true that failure to take any measure to transpose a directive in order

to achieve the result it prescribes within the period laid down for that
purpose constitutes per se a serious breach of Community law (see
Dillenkofer and Others, cited above, paragraph 29).
However, it must be emphasised that there is no direct causal link in

this case between the breach of Community law and the damage
allegedly suffered by Brinkmann. Indeed, the Danish authorities gave
immediate effect to the relevant provisions of the Second Directive
containing precise definitions of tobacco products. Accordingly, the fact
that the definitions in the Second Directive were not implemented by
ministerial decree does not in itself give rise to liability on the part of the
State.
It remains to be determined whether the Danish authorities committed

a sufficiently serious breach of the relevant provisions of the Second
Directive, having regard to the degree of clarity and precision of those
provisions. [Emphasis added.]
In that case, although the State (Denmark) had not implemented a tobacco-tax
Directive, the administrative authorities had acted as if the directive were
implemented but had done so incorrectly. The CoJ held that there was no
causal link between the non-implementation and the damage suffered and that
the administrative authorities’ incorrect interpretation did not amount to a
sufficiently serious breach. Thus, while the middle element of the test is the
hardest aspect to satisfy, all three elements of the test must be fulfilled.
7. For National Courts to Establish if State Liability Test is

Satisfied
In Brinkmann the CoJ indicated that ordinarily it is for the national courts to
determine whether the conditions for State Liability are established but that in
that case the sufficient facts were available to the CoJ to make the decision.
Fuß v. Stadt Hall [2010] ECR I 12167 (Case C-429/09), the CoJ considered
that it had sufficient information to determine that two of the three conditions
were satisfied, while leaving the third condition for the national court to
consider. Mr Fuß sought reparation on the ground of the excessive duration of
working time completed while employed by as a fireman. Article 6(6) of
Directive 2003/88 provided for a 48-hour working week. There was a
suggestion that the national legislation required proof of a specific form of fault
such as intentional fault or negligence by the employer, although the German
State had submitted that the national law did not make the right to reparation
at all conditional on fault by the employer. The CoJ ruled that a directive
concerning the organisation of working time,3 and specifically a provision that

imposed on Member States a maximum limit for the average working week
from which every worker must benefit, was a provision which conferred rights
on individuals. The CoJ also ruled that the failure to comply with the maximum
working period occurred at a time which was in obvious disregard of the CoJ’s
exisiting case-law was a sufficiently serious breach of EU law. As regards the
third condition for reparation, it was for the referring court to establish whether,
as seemed to be apparent from the documents before the CoJ, that there was
a direct causal link between the breach of Article 6(b) of Directive 2003/88 and
the loss or damage suffered by Mr Fuß, resulting from the lost rest periods
which he would have enjoyed had the maximum weekly working time provided
for by the provision been respected.
An example of the Irish High Court applying the principle of State liability can
be seen in Tate v. Minister for Social Welfare [1995] 1 IR 418 which concerned
the non-implementation in Ireland of the Equal Treatment Directive as between
men and women. Carroll J considered that failure to implement a Directive on
time was a wrong belonging to the new legal order. Carroll J considered that
the nature of the wrong was akin to a breach of constitutional duty.
In Campbell v. Ireland & Anor. [2021] IEHC 162, Coffey J held that it could not
extend the protection of rights given by Francovich to framework decisions.
The plaintiff sought a declaration that the State failed to transpose the
obligations imposed upon Ireland under Council Framework Decision
2008/909/JHA on the application of the principle of mutual recognition to
judgments in criminal matters imposing custodial sentences or measures
involving deprivation of liberty for the purpose of their enforcement in the
European Union (“the Framework Decision) and sought to rely, among other
cases, on Francovich.
The High Court held, however, that Francovich does not provide a remedy to
redress loss and damage that is anticipated at some unknown time in the future
but which has not yet occurred and, which may never occur, i.e., because the
plaintiff may never become a “sentenced person” or because the State will have
implemented the Framework Decision by the time that he has.
Coffey J stated:
“36. Since Francovich was decided in 1991, there has been no decided
case which has either extended the application of the remedy of state
liability to framework decisions or which has dispensed with the three
limiting criteria (as modified) which apply to all cases involving the
wrongful failure by a Member State to implement a directive by its
prescribed specified date. Accordingly, the principle of state liability
remains a remedy that is enforceable by private individuals in national
courts against Member States but is applicable only to directives and is,
in a case arising from the wrongful failure to implement a directive,
subject to the three limiting conditions (as modified) that were set out
by the Court of Justice in Francovich. Although the remedy given by
Francovich is “a right of reparation” there is no reason in principle why
a national court cannot, where necessary or appropriate, also grant
adjunctive declaratory relief particularly where the wrongful impairment
of the full effectiveness of a right entailed by a directive is continuing.”

8. Obligation Applies to all State Authorities
In Brasserie du Pecheur v. Federal Republic of Germany and R v. Secretary of
State for Transport ex parte Factortame Ltd [1996] ECR I-1029 (Joined Cases
C-46/93 and C-48/93), the CoJ had stated that in the interests of uniformity, the
obligation to make reparation could not depend on the national rules relating to
the division of constitutional power. This means that a State may be liable
regardless of which organ of government is responsible for the breach. The
CoJ stated (at [32]), “[i]It follows that that principle holds good for any case in
which a Member State breaches Community law, whatever be the organ of
the State whose act or omission was responsible for the breach.” [Emphasis
added.]
The significance of this dictum became apparent following the decision in

Kobler v. Austria [2003] ECR I-10239 (C-224/01). In Brasserie/Factortame the
CoJ stated at paragraphs 35 and 36:
The fact that, according to national rules, the breach complained of is

attributable to the legislature cannot affect the requirements inherent in
the protection of the rights of individuals who rely on Community law
and, in this instance, the right to obtain redress in the national courts
caused by that breach.
Consequently, the reply to national courts must be that the principle that
Member States are obliged to make good damage caused to individuals
by breaches of Community law attributable to the State is applicable
where the national legislature was responsible for the breach in
question.
In Kobler v. Austria [2003] ECR I 10239 the CoJ held that a Member State could
be held liable in damages for the incorrect application of European law by a
national court of last resort. The CoJ held that the Brasserie/Factortame criteria
applied and in considering the sufficiently serious criterion stated that state
liability for an infringement of European law by a decision of a national court
adjudicating at last instance can be incurred only in the exceptional case where
the court has manifestly infringed the applicable law. State liability in respect
of a national court adjudicating at last instance was also discussed in Traghetti
dei Mediterraneo v. Italy [2006] ECR I 5177 (Case C-173/03).
9. The Extension of the Liability Principle to Private Parties

In Courage v. Crehan [2001] ECR I 6297 (Case C-453/99), the CoJ in the
context of a competition law matter involving a breach of Article 101 TFEU,
indicated that there could be liability in damages in actions between private
parties where one party has caused loss to the other through a breach of
European Law. This has been affirmed in subsequent case-law of the Court of
Justice.4
4,Manfredi (Cases C-205/04 to C-298/04); Pfleiderer AG v. Bundeskartellamt (Case C-360/99).

For further reading, see Fitzpatrick, A. and Doherty, B., “Courage to change? The rocky road
to Directive 2014/104/EU and the future of private competition law enforcement in Ireland”
[2015] 18(2) IJEL.

o Beutler, “State Liability for Breaches of EC Law by National Courts: Is
the Requirement of a Manifest Infringement of the Applicable Law an
Insurmountable Obstacle?” (2009) 46 CMLRev 773;
o Drake, “State Liability under Community Law for Judicial Error: A False
Dawn for the Effective Protection of the Individual’s Community Rights”
IJEL [2004] 35;
o Lowry, “Suing the State for Breaches of Community Law by the
Supreme Court” Bar Review, June 2004, 107;
o Moriarty, “Direct Effect, Indirect Effect and State Liability: An Overview”
14 (2007) IJEL 97;
2011), pp. 307-314;
o Foster on EU Law (7th ed., Oxford University Press, 2019), chapter 6.

Chapter 6
The Doctrine of Supremacy or Primacy
1. Required Reading
o Craig and de Búrca, EU Law: Text, Cases and Materials (7th ed, Oxford
o Hartley, The Foundations of European Community Law (8th ed, Oxford
University Press, 2014), pp. 243-245 and chapter 8;
o De Witte, “Direct Effect, Supremacy and the Nature of the Legal Order”
in Craig and de Búrca (eds.) The Evolution of EU Law (Oxford University
Press, 1999) 177.
2. Introduction
The doctrine of supremacy emerges from the case-law of the CoJ. Supremacy
is concerned with the impact of EU law in the Member States. It was not
mentioned in the founding Treaties (ECSC, EEC and Euratom), nor has it been
incorporated into the Treaties by the amending Treaties. There is a Declaration
on Primacy (Declaration No 17) annexed to the Lisbon Treaty, which confirms
the earlier case-law of the CoJ. The Declaration provides:
The Conference recalls that, in accordance with the well settled law of
the Court of Justice of the European Union, the Treaties and the law
adopted by the Union on the basis of the Treaties have primacy over
the laws of the Member States under the conditions laid-down by the
said case-law.
Traditionally in international law, when a State ratifies a Treaty, the national

legal order governs the domestic effect of international obligations.
The operation of the doctrine of supremacy means that EU law takes

precedence over national laws of the Member States, where EU law js
invoked. Thus, in the event of a conflict between EU Law and a national law,
the EU law will prevail. "Supremacy (or primacy) denotes the capacity of [a]
norm of Community law to overrule inconsistent norms of national law in
domestic court proceedings."5
The rule that European Union law is superior to the national laws of the Member
States applies irrespective of the nature of the EU provision. It is not just
the Treaties which are superior to the national laws of the Member States, but
also binding legal acts and binding agreements with non-member states. The
rule applies irrespective of whether the EU provision came before or after the
national law and the rule applies irrespective of the nature of the national rule.
In all situations EU law is superior to the national law.
A basic understanding of this topic requires engagement with a number of

seminal cases, namely, Costa, Internationale Handelsgesellschaft,
5 De Witte, “Direct Effect, Supremacy and the Nature of the Legal Order” in Craig and de Búrca
(eds.), The Evolution of EU Law (Oxford University Press, 1999) 177, at 177.

Simmenthal, Melloni, and Factortame. Each of these cases will be discussed
below.
3. The Development of the Doctrine by the CoJ

The doctrine of supremacy is not mentioned in the Treaties apart from the
Declaration annexed to the Treaty on the Functioning of the European Union,
post-Lisbon.
As explored above, the doctrine of direct effect emerged from the case law of
the Court of Justice of the European Union (CoJ). In Van Gend en Loos [1963]
ECR 1 (Case 26/62) the CoJ considered the nature of EU law:
[T]he [European] Community constitutes a new legal order in

international law, for whose benefit the States have limited their
sovereign rights, albeit within limited fields. [Emphasis added.]
The CoJ continued this line of reasoning a year later. In the landmark decision
in the decision of Costa v. ENEL [1964] ECR 565 (Case 6/64) the doctrine of
supremacy was established by the CoJ which determined that European
Community (now EU) law took precedence over national law. Mr Costa argued
that an Act nationalising the Italian electricity industry violated inter alia
provisions of the EEC Treaty. Costa was a shareholder in a company affected
by the nationalisation. The facts concerned payment of an electricity bill. An
Italian law nationalised electricity and the national body sent out bills regarding
unpaid sums. Mr Costa refused to pay, arguing that the domestic legislation
contravened Treaty provisions on state monopolies. The proceedings before
the national court concerned the payment of an invoice for electricity for a very
small sum of money.
The issue was referred to the CoJ under Article 267 TFEU for a preliminary
reference. The Italian government intervened in the reference claiming that it
was inadmissible, as the local court had no power under Italian law to set aside
the national provision for a breach of EU Law. Italy argued that as the Italian
legislation post-dated the EC Treaty, the matter was one which fell to be dealt
with under national law. The case concerned a dispute between Treaty
provisions and subsequent national legislation. The CoJ put forward a new
characteristic of European Law—supremacy, (at 593–594):
By contract with ordinary international Treaties the EEC Treaty has

created its own legal system which, on the entry into force of the
Treaty, became an integral part of the legal systems of the Member
States and which their courts are bound to apply.
By creating a community of unlimited duration, having its own

institutions, its own personality, its own legal capacity and capacity of
representation on the international plane and, more particularly real
powers stemming from a limitation of sovereignty or a transfers of
powers from the States to the Community, the Member States have
limited their sovereign rights albeit, within limited fields, and have thus
created a body of law which binds both their nationals and themselves.

The integration into the laws of each Member State of provisions which
derive from the Community, and more generally the terms and the spirit
of the Treaty, make it impossible for the States, as a corollary, to
accord precedence to a unilateral and subsequent measure over a
legal system accepted by them on the basis of reciprocity. Such a
measure cannot therefore be inconsistent with that legal system. The
executive force of Community law cannot vary from one state to another
in deference to subsequent domestic laws without jeopardising the
attainment of the objectives of the Treaties...
The obligations undertaken under the Treaty establishing the

Community would not be unconditional but merely contingent, if
they could be called in question by subsequent legislative acts of
the signatories. Wherever the Treaty grants the States to act
unilaterally it does this by clear and precise provisions...Applications by
Member States to derogate from the Treaty are subject to a special
authorisation procedure...which would lose their purpose if the Member
States could renounce their obligations by means of ordinary law…
It follows from all of these observations that law stemming from the
Treaty an independent source of law, could not because of its
special and original nature, be over-ridden by domestic legal
provisions, however framed, without being deprived of its
character of Community law and without the legal basis of the
Community itself being called into question.
The doctrine of supremacy is thus concerned with the duty of national courts to
enforce EU rules when they conflict with national legislation. EU Treaty
provisions prevail over national laws. The rationale provided by the CoJ was
that the Member States in conferring sovereignty on the EU had created a
new legal order, that the provisions of EU law were integrated into the national
laws, and the spirit and aims of the Treaty made it impossible to afford
precedence to a domestic legal measure without calling into question the basis
of the EU itself.
Further the legislative acts would be merely contingent if they could be altered
by subsequent domestic legislation. The CoJ identified a textual basis for
supremacy in Article 288 TFEU which states that Regulations are binding and
directly applicable in all Member States.
In later case-law, a different rationale for supremacy was put forward by the
CoJ, that of effectiveness (effet utile). For the Community law to be effective it
must apply uniformly internally within the legal orders of all of the member
states, regardless of each state’s traditional approach to the reception of
international law. The uniformity (and consequently the effectiveness) of
Community law would be damaged if the traditional differing approaches to
international law had been applied to Community law. The CoJ is keen to
impose a uniformly monist approach to EU Law.
3.1 Development of the Doctrine of Supremacy
Costa v. ENEL involved conflict between provisions of the EC Treaty and

national legislative measures. In determining that the Treaty took precedence
the CoJ determined that “primary” EU law took precedence over conflicting

national measures. In Wilhelm [1969] ECR 1 (Case 14/69), the CoJ determined
that secondary EU Law takes precedence.
In Internationale Handelsgesellschaft [1970] ECR 1125 (Case 11/70), the

potential conflict arose in the context of human rights and between a
constitutional measure in the German Constitution and the EC Treaty.
The founding Treaties (ECSC, EEC and Euratom) did not contain a catalogue
of human rights. In the aftermath of World War II, the Constitutions of the
Member States, particularly the constitutions of Germany and Italy contained
strong protections of fundamental rights. In a series of cases prior to
Internationale Handelsgesellschaft, the CoJ had developed protection of
human rights as general principles of European law.
Internationale Handelsgesellschaft concerned the Common Agricultural Policy,

under which a system was in place, whereby exporters of certain agricultural
products had to obtain an export licence, which was conditional on the payment
of a deposit. If the licensee failed to export during the validity of the licence the
sum of the deposit was forfeited. The applicants argued that this system
violated the principle of proportionality and hence the German Constitution.
The CoJ held that the validity of European law measures could not be judged
according to national law rules of a Member State. The CoJ stated, at
paragraph 3:
Recourse to the legal rules or concepts of national law in order to judge

the validity of measures adopted by the institutions of the Community
would have an adverse effect on the uniformity and efficacy of
Community Law. The validity of such measures can only be
judged in the light of Community law. In fact the law stemming from
the Treaty, an independent source of law, cannot because of its very
nature be over-ridden by rules of national law, however framed,
without being deprived of its character of Community law and without
the legal basis of the Community itself being called into question).
The CoJ emphasised (at [3]) that the validity of European measures could not
be judged even according to national constitutional provisions protecting
human rights:
Therefore the validity of a Community measure or its effect within a

Member State cannot be effected by allegations that it runs counter to
either fundamental rights as formulated by the Constitution of that state
or the principles of a national constitutional structure.
The doctrine of Supremacy of EU law therefore extends to supremacy over the

fundamental human rights provisions of the Member State Constitutions.
The CoJ provided some consolation in that the measures at issue were held to
be subject to review by the CoJ for compatibility with the European standard of
human rights protection. Fundamental human rights which the CoJ found itself
obliged to protect could be inspired by the constitutional traditions of Member
States and following the decision in Nold v. Commission [1974] ECR 491,
international human rights Treaties of which the Member States are parties.
The CoJ held that the system of deposits did not violate any fundamental
human right. The judgment is important for two reasons. First, it is an important

case in the development of the protection of human rights by the CoJ.
Secondly, and more importantly for the purposes of this lecture the judgment is
an important one in terms of defining the supremacy of Community law. The
principle which emerges from this judgment is that EU Law is superior even to
the constitutional provisions of the Member State constitutions and even to the
human rights guarantees of the constitutional provisions.
3.2 National Courts and the Duty to Disapply
In Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR

629 (Case 106/77), the CoJ developed the concept of supremacy further.
The CoJ had to determine what a national court judge or court should do when
faced with a conflict between European Law and a national provision. This
issue is significant given that many national courts do not have the power to
declare legislation void. Simmenthal is also significant for stating that the duty
to disapply extends to nationals laws whether prior to or subsequent to the EU
law.
The conflict was between a European provision relating to free movement of

goods and Italian legislation. A company, which imported beef from France
into Italy, was charged fees for a veterinary inspection at the border and argued
that the fees as CEEs (Charges having an equivalent effect to customs duties)6
were incompatible with European Law. On a first reference Simmenthal SpA
v. Amministrazione delle Finanze dello Stato [1978] ECR 1453(Case 70/77) to
the CoJ, the CoJ accepted this argument. When an Italian Court attempted to
give effect to this ruling that levying of inspection fees was incompatible with
European law and ordered the repayment of the amounts to the company, the
Italian authorities objected and claimed that the national court could not simply
refuse to apply a national law which conflicted with EU law but was first of all
obliged to bring the matter before the Italian Constitutional Court as only the
Italian Constitutional Court had the authority to declare Italian law
unconstitutional.
The Italian Court referred the case to the CoJ for a second time
(Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629
(Case 106/77)) asking whether it was obliged to disregard the national law
forthwith or to wait for the appropriate constitutional authority. The CoJ stated
at paragraph 24:
[A] national court which is called upon, within the limits of its jurisdiction
to apply provisions of Community law is under a duty to give full effect
to those provisions, if necessary refusing of its motion to apply any
conflicting provision of national legislation, even if adopted
subsequently, and it is not necessary for the Court to request or to await
the prior setting aside of such a provision by legislative or other
constitutional means. [Emphasis added.]
In the context of supremacy, effectiveness of Community law requires that

where Member States have agreed to accept legal duties that they are required
to give effect to those duties in their national legal orders by disapplying
inconsistent national laws.
6 Free Movement of Goods is discussed in Chapters 12 and 13 of the Manual.

It is clear from the second Simmenthal reference that national courts are
obliged to apply directly and immediately a provision of EU law even where
there is a directly conflicting national law. This is true even where the national
law post-dates the Community provision.
It is important to understand that disapplication of a national provision does not

equate to nullification of the measure or striking it down. The national provision
will continue to apply in domestic law outside of the scope of EU Law.
The facts of Simmenthal brought up another issue, that of whether a national

court which has no domestic jurisdiction to set aside national legislative acts is
capable of doing so when they conflict with EU Law. It is clear from the CoJ’s
judgment that, although in Italy the Constitutional Court was the only national
court empowered to set aside national legislation, where a conflict arises
between national law and EU Law before any other national court that
court must give immediate effect to European law without awaiting the
prior ruling of the Constitutional Court.
This is significant in that it is in the case of Italy at least giving to lower national
courts, the power to disapply national legislation, a power which does not exist
in the Italian legal order. The emphasis in the judgment is on ensuring the
effectiveness of EU law with the CoJ stating that the effectiveness of EU law
would be threatened if every national court were not in the position of being
obliged to disapply the national law.
In A.B. & Ors v. Krajowa Rada Sądownictwa (Case C-824/18), a reference from
Poland’s Supreme Administrative Courtabout judicial independence and the
rule of law, a question also arose as to the power to disapply national provisions
which do not comply with EU law.
On the principle of primacy, the Court held:
148 . . . the effects of the principle of the primacy of EU law are binding
on all the bodies of a Member State, without, inter alia, provisions of
domestic law relating to the attribution of jurisdiction, including
constitutional provisions, being able to prevent that. In accordance with
settled case-law, rules of national law, even constitutional provisions,
cannot be allowed to undermine the unity and effectiveness of EU law
(judgments of 15 January 2013, Križan and Others, C-416/10,
EU:C:2013:8, paragraph 70 and the case-law cited, and of 4 December
2018, Minister for Justice and Equality and Commissioner of An Garda
Síochána, C-378/17, EU:C:2018:979, paragraph 49 and the case-law
cited).
149 In those circumstances, and in the light, in particular, of the fact that
the national legislature has not designated a court or tribunal, other than
the referring court, which meets the requirements of independence
under EU law and which is called upon to rule on the disputes in the
main proceedings after receiving an answer from the Court of Justice to
the questions referred to it in its request for an initial preliminary ruling,
the only effective manner for that court to remedy the infringements of
Article 267 TFEU and the second subparagraph of Article 19(1) TEU
resulting from the adoption of the Law of 26 April 2019 is, in this case,
to continue to assume the jurisdiction under which it has submitted the

request to the Court under the national rules hitherto applicable (see,
by analogy, judgment in A. K. and Others, paragraph 166 and the case-
law cited).
Asociaţia ‘Forumul Judecătorilor din România'Inspecţia Judiciară v. Consiliul

Superior al Magistraturii (Cases C-83/19, C-127/19, C-195/19, C-291/19,
C-355/19 and C-397/19) was a reference from the Court of Appeal, Bucharest
about the Treaty of Accession of Bulgaria and Romania to the EU. The referring
court asked, among other things, whether the principle of the primacy of EU
law precluded national legislation having constitutional status, as interpreted by
the constitutional court of that Member State, according to which a lower court
is not permitted to disapply of its own motion a national provision falling within
the scope of Decision 2006/928, which it considers, in the light of a judgment
of the Court, to be contrary to that decision or to the second subparagraph of
Article 19(1) TEU.
The referring court pointed to recent case-law of the Constitutional Court to the
effect that Decision 2006/928 could not take precedence over national
constitutional law. According to the referring court, there was a risk that the
constitutional law thus interpreted by the Constitutional Court might prevent the
guidance to be provided in the Court of Justice’s judgment in Case C-195/19
from being applied.
The CJEU was clear in its ruling and its reasoning merits inclusion:
244 In accordance with the Court’s settled case-law, the principle of the
primacy of EU law establishes the pre-eminence of EU law over the law
of the Member States. That principle therefore requires all Member
State bodies to give full effect to the various EU provisions, and the law
of the Member States may not undermine the effect accorded to those
various provisions in the territory of those States (judgment of 6 October
2020, La Quadrature du Net and Others, C-511/18, C-512/18 and
C-520/18, EU:C:2020:791, paragraph 214 and the case-law cited).
245 By virtue of the principle of the primacy of EU law, a Member State’s

reliance on rules of national law, even of a constitutional order, cannot
be allowed to undermine the unity and effectiveness of EU law. In
accordance with settled case-law, the effects of the principle of the
primacy of EU law are binding on all the bodies of a Member State,
without, inter alia, provisions of domestic law relating to the attribution
of jurisdiction, including constitutional provisions, being able to prevent
that (see, to that effect, judgments of 26 February 2013, Melloni,
C-399/11, EU:C:2013:107, paragraph 59, and of 2 March 2021, A.B.
and Others (Appointment of judges to the Supreme Court – Actions),
246 In that regard, it should be pointed out, inter alia, that the principle
that national law must be interpreted in conformity with EU law, by virtue
of which the national court is required, to the greatest extent possible,
to interpret national law in conformity with the requirements of EU law,
is inherent in the system of the Treaties, since it permits the national
court, within the limits of its jurisdiction, to ensure the full effectiveness
of EU law when it determines the dispute before it (judgment of 24 June

2019, Popławski, C-573/17, EU:C:2019:530, paragraph 55 and the
case-law cited).
247 It is also in the light of the primacy principle that, where it is unable
to interpret national law in compliance with the requirements of EU law,
the national court which is called upon within the exercise of its
jurisdiction to apply provisions of EU law is under a duty to give full effect
to those provisions, if necessary refusing of its own motion to apply any
subsequently, and it is not necessary for that court to request or await
the prior setting aside of such provision by legislative or other
constitutional means (see judgment of 6 October 2020, La Quadrature
du Net and Others, C-511/18, C-512/18 and C-520/18, EU:C:2020:791,
paragraph 215 and the case-law cited).
248 In that regard, any national court, hearing a case within its
jurisdiction, has, as a body of a Member State, more specifically
the obligation to disapply any provision of national law which is
contrary to a provision of EU law with direct effect in the case
pending before it (judgments of 24 June 2019, Popławski, C-573/17,
EU:C:2019:530, paragraph 61, and of 19 November 2019, A. K. and
Others (Independence of the Disciplinary Chamber of the Supreme
Court), C-585/18, C-624/18 and C-625/18, EU:C:2019:982,
paragraph 161).
249 In the present case, as regards Decision 2006/928, which is more

specifically referred to in the findings of the Constitutional Court to which
the referring court made reference, that decision requires Romania… to
address as soon as possible the benchmarks it sets out. Since those
benchmarks are formulated in clear and precise terms and are not
subject to any conditions, they have direct effect.
250 In addition, given that the second subparagraph of Article 19(1)

TEU imposes on the Member States a clear and precise obligation as
to the result to be achieved and that that obligation is not subject to any
condition as regards the independence which must characterise the
courts called upon to interpret and apply EU law (judgment of 2 March
2021, A.B. and Others (Appointment of judges to the Supreme Court –
Actions), C-824/18, EU:C:2021:153, paragraphs 146), the referring
court will also be required, within the limits of its jurisdiction . . . to ensure
the full effectiveness of that provision by disapplying, if necessary, any
provision of national law conflicting with it.
251 Consequently, where it is proved that the second

subparagraph of Article 19(1) TEU or Decision 2006/928 has been
infringed, the principle of the primacy of EU law will require the
referring court to disapply the provisions at issue, whether they
are of a legislative or constitutional origin (see, to that effect,
judgment of 2 March 2021, A.B. and Others (Appointment of judges to
the Supreme Court – Actions), C-824/18, EU:C:2021:153,
252 In the light of the foregoing considerations, the answer to the third
question referred in Case C-195/19 is that the principle of the primacy

of EU law must be interpreted as precluding legislation of a
Member State having constitutional status, as interpreted by the
constitutional court of that Member State, according to which a
lower court is not permitted to disapply of its own motion a
national provision falling within the scope of Decision 2006/928,
which it considers, in the light of a judgment of the Court, to be
contrary to that decision or to the second subparagraph of
Article 19(1) TEU.
In B v. Latvijas Republikas Saeima (Case C-439/19), the Latvian

Constitutional Court queried whether the supremacy of EU law precluded a
Member State’s constitutional court, in the case of challenge to national
legislation providing for public access to personal data in respect of penalty
points imposed for road traffic offences that, following a preliminary reference
to the CJEU, proved to be incompatible with EU law, from deciding that the
legal effects of that legislation be maintained until the date of delivery of its
substantive judgment, in accordance with the principle of legal certainty,
The Court of Justice held:
132 . . . the interpretation which, in the exercise of the jurisdiction

conferred on it by Article 267 TFEU, the Court gives to rules of EU law
clarifies and defines the meaning and scope of those rules as they must
be or ought to have been understood and applied from the time of their
entry into force. It is only exceptionally that the Court may, in application
of the general principle of legal certainty inherent in the EU legal order,
be moved to restrict for any person concerned the opportunity of relying
on a provision which it has interpreted with a view to calling into question
legal relationships established in good faith. Two essential criteria must
be fulfilled before such a limitation can be imposed, namely that those
concerned should have acted in good faith and that there should be a
risk of serious difficulties…
133 As the Court has consistently held, such a restriction may be

allowed only in the actual judgment ruling upon the interpretation
sought. Indeed, there must necessarily be a single occasion when a
decision is made on the temporal effects of the requested interpretation
which the Court gives of a provision of EU law. The principle that a
restriction may be allowed only in the actual judgment ruling upon that
interpretation guarantees the equal treatment of the Member States and
of other persons subject to EU law, under that law, and fulfils, at the
same time, the requirements arising from the principle of legal certainty
…
134 Consequently, the temporal effects of a preliminary ruling

given by the Court cannot depend on the date of delivery of the
judgment by which the referring court rules finally on the main
action, or even on the referring court’s assessment of the need to
preserve the legal effects of the national legislation at issue.
135 By virtue of the principle of primacy of EU law, rules of national

law, even of a constitutional order, cannot be allowed to
undermine the unity and effectiveness of EU law (see, to that effect,
judgments of 26 February 2013, Melloni, C-399/11, EU:C:2013:107,

paragraph 59, and of 29 July 2019, Pelham and Others, C-476/17,
EU:C:2019:624, paragraph 78). Even assuming that overriding
considerations of legal certainty are capable of leading, by way of
exception, to a provisional suspension of the ousting effect which
a directly applicable rule of EU law has on national law that is
contrary thereto, the conditions of such a suspension can be
determined solely by the Court (see, to that effect, judgment of
8 September 2010, Winner Wetten, C-409/06, EU:C:2010:503,
paragraphs 61 and 67).
136 In this instance, since a risk of serious difficulties resulting

from the interpretation adopted by the Court in the present
judgment has not been shown to exist and the criteria referred to
in paragraph 132 above are cumulative, it is not appropriate to limit
the judgment’s temporal effects.”
Furthermore, in Ciola v. Land Voralberg [1999] I ECR 2517 (Case C224/97),

the Court held that the supremacy of EU law extended not only to general
legislative provisions but to specific individual administrative acts by
decentralised national authorities.
Casey considers that Simmenthal played a role also in empowering the lower
Irish courts, namely, the District and Circuit Courts, to test legislation for
compatibility with European law.
Whether a body such as the Equality Tribunal is under a similar obligation to

disapply national law to give effect to EU law was at issue in the High Court in
The Minister for Justice, Equality and Law Reform & Anor. v. The Director of
the Equality Tribunal & Ors. [2009] IEHC 72. The Court held that it was not
permissible for the Equality Tribunal to disapply national law in the face of
conflicting European law:
8. There is no principle of European law which allows an administrative

body or a court of limited jurisdiction to exceed its own authority in order
to achieve a result, whereby it is of the view that European legislation
has not been properly implemented at national level and that this
situation is to be remedied by the re-ordering in ideal form of national
legislation. The limit of jurisdiction is of primary importance to the
exercise of authority, whether the court be one established as an
administrative body, or is one of the courts under the Constitution. In
the event that a view emerges that national legislation has not properly
implemented European legislation, this is no more than an opinion. The
respondent does not have the authority to make a binding legal
declaration of inconsistency or insufficiency on a comparison of
European and national legislation. The High Court has that power as
this has been expressly reserved to it by Article 34 of the Constitution.
The respondent is bound by S.I. No. 749 of 2004 fixing the upper age
for admission to training as a member of An Garda Síochána at 35
years.

This interpretation of CoJ case-law was subsequently appealed to the Supreme
Court by the respondents.7 Clarke J (as he then was) was not satisfied that the
answer to that question was acte clair and proposed that the Court should refer
an issue to the CJEU under Art. 267 of the TFEU for the purposes of assisting
the Supreme Court in resolving the appeal. Thus, the Supreme Court referred
the following question of European law to the Court of Justice:
Where
(a) A national body is established by law and has a general
jurisdiction conferred on it to inter alia ensure enforcement of
Union law in a particular area; and
(b) National law would require that such body not have
jurisdiction in a limited category of case where an effective
remedy would require the disapplication of national legislation
on the basis of national or European law; and
(c) Appropriate national courts would have a jurisdiction to
make any appropriate order disapplying national legislation
which was required to ensure compliance with the measure of
European law in question, would have jurisdiction to entertain
cases in which such a remedy was necessary, would have
jurisdiction in such cases to provide any remedy mandated by
Union law and where the remedy provided in the courts has
been assessed, in accordance with the jurisprudence of the
Court of Justice, as complying with the principles of equivalence
and effectiveness must the statutory body concerned
nonetheless be taken to have a jurisdiction to entertain a
complaint that national legislation was in breach of relevant
Union law and, if upholding that complaint, disapply that
legislation notwithstanding that national law would confer the
jurisdiction in all cases, involving challenges to the validity of
legislation on any ground or requiring the disapplication of
legislation, on a court established under the Constitution rather
than the body in question?
This matter was considered by the Court of Justice which held as follows as to
the duty to disapply under the doctrine of primacy/supremacy:
35 . . . in accordance with the Court’s settled case-law, the primacy of

EU law means that the national courts called upon, in the exercise of
their jurisdiction, to apply provisions of EU law must be under a duty to
give full effect to those provisions, if necessary refusing of their own
motion to apply any conflicting provision of national law, and without
requesting or awaiting the prior setting aside of that provision of national
law by legislative or other constitutional means (see, to that effect,
judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49,
paragraphs 17, 21 and 24, and of 6 March 2018, SEGRO and Horváth,
7 Minister for Justice, Equality and Law Reform & Anor. v. The Workplace Relations Commission
[2017] IESC 43. As stated by Clarke J, “as a result of the Workplace Relations Commission Act
. . . the relevant functions of the Tribunal have now been transferred to the Workplace Relations
Commission. Nothing turns on that change for the purposes of this appeal.”

C-52/16 and C-113/16, EU:C:2018:157, paragraph 46 and the case-law
cited).
36 Accordingly, any provision of a national legal system and any
legislative, administrative or judicial practice which might impair the
effectiveness of EU 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 disregard national legislative provisions
which might prevent directly applicable EU rules from having full force
and effect are incompatible with the requirements which are the very
essence of EU law (see, to that effect, judgments of 9 March 1978,
Simmenthal, 106/77, EU:C:1978:49, paragraph 22; of 19 June 1990,
Factortame and Others, C-213/89, EU:C:1990:257, paragraph 20; and
of 8 September 2010, Winner Wetten, C-409/06, EU:C:2010:503,
paragraph 56).
37 That would be the case if, in the event of a conflict between a
provision of EU law and a national law, the solution of the conflict were
to be reserved to an authority with a discretion of its own, other than the
court called upon to apply EU law (judgment of 8 September 2010,
Winner Wetten, C-409/06, EU:C:2010:503, paragraph 57 and the case-
law cited).
38 As the Court has repeatedly held, that duty to disapply national
legislation that is contrary to EU law is owed not only by national
courts, but also by all organs of the State — including
administrative authorities — called upon, within the exercise of
their respective powers, to apply EU law (see, to that effect,
judgments of 22 June 1989, Costanzo, 103/88, EU:C:1989:256,
paragraph 31; of 9 September 2003, CIF, C-198/01, EU:C:2003:430,
paragraph 49; of 12 January 2010, Petersen, C-341/08, EU:C:2010:4,
paragraph 80; and of 14 September 2017, The Trustees of the BT
Pension Scheme, C-628/15, EU:C:2017:687, paragraph 54).
39 It follows that the principle of primacy of EU law requires not only
the courts but all the bodies of the Member States to give full effect
to EU rules….”
43… the Irish legislature chose to confer the specific power of ensuring
compliance with Directive 2000/78 on the Workplace Relations
Commission. Under section 77(1) of the Equality Acts, which lay down
the measures transposing that directive into Irish law, any person who
claims to have been discriminated against in contravention of the
Equality Acts may seek redress for the harm that he or she considers
he or she has sustained by referring the case to that commission…
45… if the Workplace Relations Commission, as a body upon which the
national legislature has conferred the power to ensure enforcement of
the principle — as given concrete expression by Directive 2000/78 and
the Equality Acts — of non-discrimination in respect of employment and
occupation, has before it a dispute involving observance of that
principle, the principle of primacy of EU law requires it to provide,
within the framework of that power, the legal protection which
individuals derive from EU law and to ensure that EU law is fully
effective, disapplying, if need be, any provision of national
legislation that may be contrary thereto (see, to that effect,
judgments of 22 November 2005, Mangold, C-144/04, EU:C:2005:709,
paragraph 77; of 19 January: 2010, Kücükdeveci, C-555/07,

EU:C:2010:21, paragraph 53; and of 19 April 2016, DI, C-441/14,
EU:C:2016:278, paragraph 35).
46 Indeed, it would be contradictory if an individual were able to
rely upon the provisions of EU law in a particular area before a
body upon which national law has conferred jurisdiction over disputes
in that area but that body were under no obligation to apply those
provisions by refraining from applying provisions of national law which
conflict with them (see, to that effect, judgment of 22 June 1989,
Costanzo, 103/88, EU:C:1989:256, paragraph 31).
The Simmental judgment required national courts to disapply a provision of

national law which conflicts with an EU provision. The national court is not
required to nullify the national measure, which may continue to govern areas
outside the scope of EU Law. In Ministero delle Finanze v. INOGE’90 Srl [1998]
ECR I-6307 (Case C-10-22/97) the CoJ considered (at [20] and [21]):
… It cannot....be inferred from the judgment in Simmental that the

incompatibility with Community law of a subsequently adopted rule of
national law has the effect of rendering that rule of national law non-
existent. Faced with such a situation, the national court is, however
obliged to disapply that rule...
The Court of Appeal considered the effect of a finding of inapplicability under

the Simmenthal doctrine in Danqua v. The Minister for Justice and Equality
[2017] 3 IR 192:
[25] . . . . Inasmuch . . . as the Simmenthal doctrine requires all national

courts to disapply the national rule in question which has been found to
be inconsistent with EU law, the Court of Justice's findings to such effect
accordingly have a general erga omnes application. It is, of course, true
that the Court of Justice does not enjoy any formal jurisdiction to annul
or otherwise positively invalidate national laws or practices. The
practical effect nonetheless of a decision of this nature is in many
respects akin to that of a finding of unconstitutionality in our own legal
system, given that national courts are called upon to disapply that
national law in consequence of that finding on the ground that it is
inconsistent with the superior ranking EU law. While under the
Simmenthal doctrine the inconsistent national law is simply suspended
by the disapplication of that law by the national courts in reliance upon
the decision of the Court of Justice rather than formally annulled (as
would happen with a declaration of unconstitutionality under Article
34.3.2° of the Constitution under our own legal system), the key point
in both instances is nonetheless that the national rule is now no longer
legally operative and, specifically, it can no longer form the basis of any
administrative decision which presupposes that the rule in question has
full force and effect.
[26] . . . . Accordingly, it seems to me that this court is entirely bound to

apply that decision as part of its duty of sincere cooperation with the
Court of Justice as an institution of the European Union in the manner
provided for in Article 4(3) of the Treaty on European Union (“TEU”) ....

[27] The decision of the Court of Justice on the Article 267 TFEU
reference is itself an act of an institution of the Union. It is, accordingly,
the task of this court, discharging as it is the juridical functions of Ireland
qua member state of the Union, to take the appropriate measures to
give effect to that decision. This court discharges that task by simply
giving effect to the decision of the Court of Justice.
In Rieser Internationale Transporte GmbH v. Autobahnen- und Schnellstraßen-

Finanzierungs-AG (Asfinag) [2004] ECR I 4777 (Case C-157/02), the CoJ
confirmed the duty to disapply national provisions conflicting with a directly
effective directive only arises after the transposition date.
Originially, in Kapferer v. Schlanck and Schick [2006] ECR I -2585 (Case C-

234/04), the CoJ recognised the importance of the principle of res judicata of
judicial decisions. National courts are not required to disapply procedural
rules conferring finality of a decision of a national court.
In Puligienica Facility Esco SpA (PFE) v. Airgest SpA (Case C-689/13) the
Court held:
41. Any provision of a national legal system and any legislative,

administrative or judicial practice that might impair the effectiveness of
EU law by withholding from the national court with jurisdiction to apply
such law the power to do everything necessary at the moment of its
application to set aside national legislative provisions that might prevent
EU rules from having full force and effect are incompatible with those
requirements, which are the very essence of EU law (see judgments in
Simmenthal, 106/77, EU:C:1978:49, paragraph 22, and A, C112/13,
EU:C:2014:2195, paragraph 37 and the case-law cited).
In M.A.S and M.B. EU:C:2017:936 (Case C-42/17), the court held that the
competent national courts, when they have to decide to disapply national
provisions, must ensure that fundamental rights of persons accused of
committing crimes are observed.
3.3 A Duty to Disapply Constitutional Provisions?
In the discussion of Internationale Handelsgesellschaft [1970] ECR 1125 (Case

11/70) above, it was noted that within the scope of EU Law, EU Law is superior
to the constitutional provisions of the Member States. In the case of a direct
conflict between EU law and a constitutional provision, are the national courts
obliged to disapply constitutional provisions?
In Ireland, in SPUC v. Grogan [1989] IR 752, a potential conflict arose between

the constitutionally protected right to life of the unborn and the Treaty provisions
on Freedom to Provide Services. In SPUC v. Grogan [1991] I ECR 4685 (Case
C-159/90) the Court of Justice determined that the issue fell outside the
scope of EU Law. This meant that the Irish Supreme Court did not have to
decide whether to disapply the Irish Constitutional provision.
A recent preliminary reference from Spain, Melloni v Ministerio Fiscal

ECLI:EU:C:2013:107 (Case C-399/11) concerned a conflict between Article
53 of the EU Charter of Fundamental Rights and a provision of the
Spanish Constitution and an interpretation of the Framework Decision on the

European Arrest Warrant. In this case, the CoJ required the Spanish
Constitutional Court to disapply the constitutional provision to give full effect to
EU law.
The EU Charter of Fundamental Rights has the same status as the Treaties
and is at the top of the EU hierarchy. Article 53 of the Charter provides:
Nothing in the 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 by the Member
States’ constitutions.
Mr. Melloni, an Italian national, was tried and sentenced to ten years
imprisonment in absentia in Italy for bankruptcy fraud, having skipped bail. He
was arrested in Spain eleven years later and the Italian authorities sought his
surrender on foot of a European Arrest Warrant (EAW). Mr. Melloni objected to
his surrender pursuant to the EAW, arguing that he had not received a fair trial.
The Framework Decision on the EAW provided that trial in abstentia was not a
reason to refuse surrender. The Spanish Constitutional Court considered that
the fair trial provision of the Spanish Constitution might be breached if the
Spanish authorities were precluded from making the surrender of Mr Melloni
conditional on his right to have the conviction reviewed.
The Spanish Constitutional Court referred the question of whether Article 53 of

the Charter must be interpreted as allowing the executing Member State to
make the surrender of a person convicted in absentia conditional upon the
conviction being open to review in the issuing Member State, in order to avoid
an adverse effect on the right to a fair trial and the rights of the defence
guaranteed by its constitution.
The Spanish Consititutional Court considered that Article 53 of the EU Charter

of Fundamental Rights gave a general authorisation to a Member State to apply
the standard of protection of fundamental rights guaranteed by its 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. In the
context of the Melloni case, this would allow Spain to make the execution of a
European Arrest Warrant issued for the purposes of executing a sentence
rendered in absentia subject to conditions intended to avoid an interpretation
which restricts or adversely affects fundamental rights recognised by the
Spanish Constitution. The CoJ emphasised that the application of such
conditions is not allowed under the Framework Decision on the EAW.
The CoJ held that:
58. That interpretation of Article 53 of the Charter would undermine the

principle of the primacy of EU law inasmuch as it would allow a Member
State to disapply EU legal rules which are fully in compliance with the
Charter where they infringe the fundamental rights guaranteed by that
State’s constitution.

The CoJ stated that the principle of primacy meant that even Member State
constitutional rules are not permitted to undermine the effectiveness of EU law
stating:
59. It is settled case-law that, by virtue of the principle of primacy of EU

law, which is an essential feature of the EU legal order (see Opinion
1/91 [1991] ECR I-6079, paragraph 21, and Opinion 1/09 [2011] ECR
I-1137, paragraph 65), rules of national law, even of a constitutional
order, cannot be allowed to undermine the effectiveness of EU law on
the territory of that State (see, to that effect, inter alia, Case
11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph
3, and Case C-409/06 Winner Wetten [2010] ECR I-8015, paragraph
61).
60. It is true that Article 53 of the Charter confirms that, where an EU

legal act calls for national implementing measures, 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 EU law are not thereby compromised. [Emphasis
added.]
The CoJ considered that the relevant provision of the Framework Decision on
the EAW did not permit the refusal of surrender of an individial tried in absentia:
61. However, as is apparent from paragraph 40 of this judgment,

Article 4a(1) of Framework Decision 2002/584 does not allow Member
States to refuse to execute a European arrest warrant when the person
concerned is in one of the situations provided for therein.
62. It should also be borne in mind that the adoption of Framework

Decision 2009/299, which inserted that provision into Framework
Decision 2002/584, is intended to remedy the difficulties associated with
the mutual recognition of decisions rendered in the absence of the
person concerned at his trial arising from the differences as among the
Member States in the protection of fundamental rights. That framework
decision effects a harmonisation of the conditions of execution of a
European arrest warrant in the event of a conviction rendered in
absentia, which reflects the consensus reached by all the Member
States regarding the scope to be given under EU law to the procedural
rights enjoyed by persons convicted in absentia who are the subject of
a European arrest warrant. [Emphasis added.]
The CoJ considered that the national court’s proposed interpretation of Article
53 of the Charter would compromise the efficacy of EU law:
63. Consequently, allowing a Member State to avail itself of Article 53

of the Charter to make the surrender of a person convicted in
absentia conditional upon the conviction being open to review in the
issuing Member State, a possibility not provided for under Framework
Decision 2009/299, in order to avoid an adverse effect on the right to a
fair trial and the rights of the defence guaranteed by the constitution of
the executing Member State, by casting doubt on the uniformity of the
standard of protection of fundamental rights as defined in that
framework decision, would undermine the principles of mutual trust and

recognition which that decision purports to uphold and would, therefore,
compromise the efficacy of that framework decision. [Emphasis added.]
Thus, the CoJ required the Spanish constitutional court to disapply the
constitutional provision to give full effect to EU law.
3.4 Supremacy of Putative EC Law Rights
In R v. the Secretary of State for Transport, ex parte Factortame Ltd. [1990]

ECR 1 243 (Factortame No.1) (Case C 213/89), the CoJ held that putative EU
law rights are superior to clear provisions of national law.
Spanish fishermen claimed that provisions of UK legislation preventing them

from registering their fishing vessels in the UK were in breach of EU law. The
House of Lords asked the CoJ whether it was obliged to grant interim
protection in the form of an injunction against the Crown to a party relying
on a European law that was in conflict with UK legislation when that party's
rights under European law were not clear and were to be determined by a
CoJ ruling that was pending.
The pending ruling was concerned with nationality requirements imposed by

the (UK) Merchant Shipping Act, 1988 and the Merchant Shipping (Registration
of Fishing Vessels) Regulations, aimed at ending the practice of quota hopping
whereby foreign vessels without links to the UK were using its quotas. The
issue for the House of Lords was whether it could suspend the Act and the
Regulations on an interim basis. Under existing UK law the court had no power
to suspend Acts of Parliament. The novel aspect of the case is the question of
whether a national court must disapply national rules in favour of putative EU
rights. The CoJ relied on the principle of loyal co-operation in Article 4(3) TFEU
and stated (at [21]):
[T]he full effectiveness of Community Law would be just as much

impaired if a rule of national law could prevent a court ceased of a
dispute governed by Community law from granting interim relief in order
to ensure the full effectiveness of the judgement to be given on the
existence of the rights claimed under Community law. It follows that a
Court which in those circumstances would grant interim relief if it were
not for a rule of national law is obliged to set aside that rule. [Emphasis
added.]
Thus, priority must be given to directly effective European law over conflicting
national law, even whether the community provision is presumed to be directly
effective. The CoJ protected the rights of individuals derived from European
law even though it had not yet been determined that the legislation in question
was incompatible with EU Law. Subsequently in Case C-221/89 Factortame II
[1991] ECR I-3095, the CoJ held that the UK legislation was indeed
incompatible with EU law. These cases had important ramifications in the UK
where the principle of parliamentary supremacy is a well-established principle
of its unwritten constitutional law.
It is sometimes suggested that the doctrine of supremacy goes further than a

requirement to disapply. It is suggested that Factortame I can be read as
requiring the UK courts to create law, as opposed to merely disapplying it.

3.5 Supremacy and International Law
Foster discusses the issue of whether, in the event of a conflict between EU

Law and international law, EU law would take precedence.8 In Kadi v. Council
[2008] ECR I 6351 (Joined Cases C-402/05 P and C-415/05 P), The CoJ struck
down EU Regulations implementing UN Security Council Resolutions
adopted after the 11 September 2001 attacks in the US which required States
to freeze assets of those associated with the Taliban, Osama bin Laden or Al-
Qaeda. The applicants were named on the UN list. The CoJ determined that
the EU measures violated the right to be heard and the right to an effective
remedy and that the contested act should be annulled.
The CoJ considered that it had the right to review the Regulations for
compatibility with EU Law, particularly the EU human rights standards. The
CoJ was thus indirectly reviewing the UN resolution.9 Foster states “the
overall conclusion is that EU law in the Union takes priority over conflicting
international law even where, as in the case of the UN provisions, they were
prior to the EU acts.”10
3.6 Interaction between Supremacy and Direct Effect

The exact nature of the relationship between the doctrines of supremacy and
direct effect has been somewhat uncertain over the years. The seminal
question was whether direct effect was an essential prerequisite before EU law
could have supremacy over national law.
A series of significant cases in the last year have brought much-needed clarity
to this doctrinal conundrum, with the CJEU clarifying that supremacy is
dependent on direct effect, thereby endorsing a “trigger model,”11 i.e.
supremacy is triggered by the doctrine of direct effect.
In Popławski (C-573/17, EU:C:2019:530), the Grand Chamber of the CJEU
examined whether a judicial authority executing a European arrest warrant
must, in accordance with the principle of supremacy of EU law, disapply
national provisions which are incompatible with a framework decision.
The case concerned the execution of a European arrest warrant (EAW) issued
by a Polish court against a Polish national residing in the Netherlands enforcing
a custodial sentence in Poland. The court examined the scope of the obligation
that the principle of supremacy of EU law places on a national court where a
provision of its national law contravenes provisions of EU Law that do not have
direct effect.
On the relationship between supremacy and direct effect, the CJEU stated:
“57 … in order to ensure the effectiveness of all provisions of EU
law, the primacy principle requires, inter alia, national courts to interpret,
to the greatest extent possible, their national law in conformity with EU
law and to afford individuals the possibility of obtaining redress where
their rights have been impaired by a breach of EU law attributable to a
Member State.
8 Foster on EU Law (4th ed., Oxford University Press, 2013), at 136-137. See also Craig and
de Búrca, EU Law: Text, Cases and Materials (5th ed., Oxford University Press, 2012), chapter
10 on EU International Relations Law and in particular p. 341 in respect of the Kadi decision.
9 Ibid.
10 Ibid., at 137.
11 Craig and de Búrca, 7th ed., at p. 309.

58 It is also in the light of the primacy principle that, where it is unable
to interpret national law in compliance with the requirements of EU law,
the national court which is called upon within the exercise of its
jurisdiction to apply provisions of EU law is under a duty to give full effect
to those provisions, if necessary refusing of its own motion to apply any
subsequently, and it is not necessary for that court to request or await
the prior setting aside of such provision by legislative or other
constitutional means (see, to that effect, judgment of 4 December 2018,
Minister for Justice and Equality and Commissioner of An Garda
Síochána, C‑378/17, EU:C:2018:979, paragraph 35 and the case-law
cited).
59 That said, account should also be taken of the other essential

characteristics of EU law and, more particularly, the fact that only some
of the provisions of that law have direct effect.
60 Thus, the principle of the primacy of EU law cannot have the effect
of undermining the essential distinction between provisions of EU law
which have direct effect and those which do not and, consequently, of
creating a single set of rules for the application of all of the provisions
of EU law by the national courts.
61 In that regard, it should be pointed out that any national court,

hearing a case within its jurisdiction, has, as an organ of a Member
State, the obligation to disapply any provision of national law which is
contrary to a provision of EU law with direct effect in the case pending
before it …
62 On the other hand, a provision of EU law which does not have

direct effect may not be relied on, as such, in a dispute coming under
EU law in order to disapply a provision of national law that conflicts with
it.
63 Thus the national court is not required, solely on the basis of EU

law, to disapply a provision of national law which is incompatible with a
provision of the Charter of Fundamental Rights of the European Union
which, like Article 27, does not have direct effect …
64 Similarly, reliance on a provision of a directive which is not

sufficiently clear, precise and unconditional to confer on it direct effect
may not, solely on the basis of EU law, lead to a provision of national
law being disapplied by a court of a Member State ….
65 In addition, according to settled case-law, a directive cannot of

itself impose obligations on an individual and cannot therefore be relied
on as such against that individual before a national court…

67 It follows from the foregoing that, even a clear, precise and
unconditional provision of a directive does not allow a national court to
disapply a provision of its national law which conflicts with it, if, in doing
so, an additional obligation were to be imposed on an individual (see,
to that effect, judgments of 3 May 2005, Berlusconi and Others,
C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 72 and
73; of 17 July 2008, Arcor and Others, C‑152/07 to C‑154/07,
EU:C:2008:426, paragraphs 35 to 44; of 27 February 2014, OSA,
C‑351/12, EU:C:2014:110, paragraphs 46 and 47; of 7 August 2018,
Smith, C‑122/17, EU:C:2018:631, point 49; and of 22 January 2019,
Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 73).”
Therefore CJEU concluded that the framework decision did not have direct effect
and therefore the national court was not obliged to disapply a national law on the
sole basis of inconsistency but it was still obliged, pursuant to Von Colson, to
interpret national law in conformity with the framework decision.12
Furthermore, the Grand Chamber of the CJEU held in A.K. and Others v Sąd
Najwyższy, (Cases C-585/18, C-624/18, C-625/18; EU:C:2019:982) reaffirmed its
position:
“157 The principle of the primacy of EU law establishes the pre-

eminence of EU law over the law of the Member States (judgment of
24 June 2019, Popławski, C-573/17, EU:C:2019:530, paragraph 53
and the case-law cited).
158 That principle therefore requires all Member State bodies to give
full effect to the various EU provisions, and the law of the Member
States may not undermine the effect accorded to those various
provisions in the territory of those States (judgment of 24 June
case-law cited).
159 In that regard, it should, inter alia, be pointed out that the principle
that national law must be interpreted in conformity with EU law, by virtue
of which the national court is required, to the greatest extent possible,
to interpret national law in conformity with the requirements of EU law,
is inherent in the system of the treaties, since it permits the national
court, within the limits of its jurisdiction, to ensure the full effectiveness
of EU law when it determines the dispute before it (judgment of 24 June
case-law cited).
160 It is also in the light of the primacy principle that, where it is

impossible for it to interpret national law in compliance with the
requirements of EU law, the national court which is called upon within
the exercise of its jurisdiction to apply provisions of EU 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 that court to
12 Craig and de Búrca, 7th ed., at p 310.

request or await the prior setting aside of such provision by legislative
or other constitutional means (judgment of 24 June 2019, Popławski,
161 In that regard, any national court, hearing a case within its
jurisdiction, has, as a body of a Member State, more specifically the
obligation to disapply any provision of national law which is contrary to
a provision of EU law with direct effect in the case pending before it ...”
Finally, in an urgent preliminary reference to the Court in Országos (C-924/19

PPU; EU:C:2020:367) the Court affirmed that the principle of primacy of EU
law, as well as the right to effective judicial protection, guaranteed by Article 47
CFR, required the referring court to declare itself competent to hear and
determine actions brought by the applicants against a decision of the asylum
authority, having rejected their opposition to administrative decisions ordering
them to return to their country of origin and if necessary, to disapply any
provision of national law which would prohibit them from proceeding in
this manner.
4. Supremacy from the Perspective of the Member States

Supremacy emerged from the case-law of the CoJ but is dependent for its
application on the national courts of the Member States. Weiler considers that
“the evolutionary nature of supremacy is necessarily bidimensional. One
dimension is the elaboration of the parameters of the doctrine by the European
Court. But its full reception, the second dimension, depends on its
incorporation into the constitutional orders of the Member States ...”13 Thus any
analysis of supremacy is incomplete without considering the issue from the
perspective of the Member States.
This chapter will examine supremacy from the perspective of Germany and
Ireland, but each Member State has its own perspective and to get a true
picture it would be necessary to examine supremacy in each of the 27 Member
States. Germany was initially unwilling to accept supremacy.
It is also interesting to note the UK European Union Act 2011, which enshrines
a series of conditions on future UK acceptance of new EU powers.
4.1 Germany
Internationale Handelsgesellschaft [1970] ECR 1125 (Case 11/70), gave rise

to a potentially serious conflict in the relationship between the CoJ and the
German Constitutional Court.
The applicants applied for agricultural licences, for which they paid a large
deposit. This deposit was forfeit if the licenses holder failed to export during
the period specified in the license. It was submitted that the licenses system
violated a principle of the German Constitution, that of proportionality.
13Weiler, “The Community System: the Dual Character of Supranationalism” (1981) 1 YBEL
267, at 275.

The CoJ refused to allow validity of EU legal provisions to be tested according
to the national rules of the Member State, including national constitutional
provisions, even those protecting human rights. The Court of Justice instead
determined that the EU legal provisions were to be subject to review for
compatibility with an EU standard of human rights protection.
The Administrative Court in Germany, following the reference to the CoJ

considered that the forfeiture system breached the principle of proportionality.
The Administrative Court requested a ruling from the German Constitutional
Court which gave the following ruling, in Internationale Handelsgesellschaft v.
Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [1974] CMLR 540,
known as Solange I:
The part of the Constitution dealing with fundamental rights is an

inalienable essential feature of the valid constitution of the Federal
Republic of Germany and one which forms part of the constitutional
structure of the constitution. Article 24 [which deals with the transfer of
sovereign rights to inter-state institutions] does not without reservation
allow it to be subjected to qualifications. In this, the present state of
integration of the Community is of crucial importance. The Community
still lacks a democratically legitimated parliament directly elected by
general suffrage which possesses legislative powers and which the
Community and organs empowered to legislate are fully responsible on
a political level. It still lacks in particular a codified catalogue of
fundamental rights, the substance of which is reliably and
unambiguously fixed for the future in the same way as the substance of
the Constitution ….
In [a] conflict of norms, the guarantee of fundamental rights in the

constitution prevails as long as the competent organs of the Community
have not removed the conflict of norms in accordance with the Treaty
mechanism. [Emphasis added.]
In other words, so long as (“solange”) the EU had not removed the possible
conflict of norms between provisions of EU law and national constitutional
rights, the German Courts would ensure that the German protection of rights
took precedence. The German Constitutional Court did not accept the doctrine
of supremacy.
Subsequently, some of the concerns addressed in the German Court’s decision

were remedied. The European Parliament was directly elected for the first time
in 1977. The CoJ developed its human rights as general principles
jurisprudence. Nowadays it is a pre-condition of EU membership that a state
be party to the European Convention on Human Rights. With the advent of the
Lisbon Treaty the Charter of Fundamental Rights became legally binding.
In a decision in 1986, Re Wunshe Handelsgesellschaft, decision of 22nd

October 1986, [1987] 3 CMLR 225 at 265, known as the Solange II case the
German Constitutional Court indicated some acceptance of the doctrine of
supremacy and held (at 265):
[I]t must be held that, so long as the European Communities, and in

particular the case law of the European Court, generally ensure an
effective protection of fundamental rights as against the sovereign
powers of the Community which is to be regarded as substantially

similar to the protection of fundamental rights required unconditionally
by the Constitution, and in so far as they generally safeguard the
essential content of fundamental rights, the Federal Constitutional Court
will no longer exercise this jurisdiction to decide on the applicability
of secondary community legislation cited as the legal basis for any acts
of the German Courts or Authorities within the sovereign jurisdiction of
the Federal Republic of Germany, and will no longer review such
legislation by the standard of fundamental rights contained in the
constitution.
In Brunner v. The European Union Treaty [1994] 1 CMLR 57, the German
Constitutional Court indicated that its acceptance of supremacy was
conditional. The case involved a constitutional challenge to the ratification of
the TEU (the Maastricht Treaty), the German Constitutional Court emphasised
(at [22]) that, given that the two new TEU pillars, Common Foreign and Security
Policy and Justice and Home Affairs, were intergovernmental rather than
supranational in nature:
. . . the protection of basic rights provided by the Constitution is not

displaced by supranational law that could claim precedence. . . . In this
respect the position is no different from that with a traditional
international convention: in so far as its internal implementation would
infringe constitutional rights it is prohibited by constitutional law.
[Emphasis added.]
In Gauweiler v. Treaty of Lisbon (June 30, 2009), the German Constitutional

Court said (at [331]):
With Declaration No. 17 Concerning Primacy annexed to the Treaty of

Lisbon, the Federal Republic of Germany does not recognise an
absolute primacy of application of Union law, which would be
constitutionally objectionable, but merely confirms the legal situation as
it has been interpreted by the Federal Constitutional Court. [Emphasis
added.]
In that judgment, the German Constitutional Court determined that German

Parliament approval is a pre-requisite to the exercise of Article 352 TFEU (and
a number of other provisions of the Treaties).
In Honeywell (July 6, 2010), a case concerned with discrimination on the

ground of age, the Federal Constitutional Court stated:
The law of the European Union can only develop effectively if it

supplants contrary Member State law .... contrary Member States’ law
is in principle inapplicable in the field of application of Union law. The
primacy of application follows from Union law because the Union could
not exist as a legal community if the uniform effectiveness of Union law
were not safeguarded in the Member States. [Emphasis added.]

Chalmers states that Honeywell evidences “a deep reticence ... about going
against EU Law”.14
The German Constitutional Court seems to have accepted that the standard of
human rights protection at EU level is equivalent to the standard of protection
afforded by the German Constitution, but it is a conditional acceptance. Craig
and de Búrca state “[t]he German courts also regard themselves as possessing
the ultimate Kompetenz-Kompetenz to decide whether EU action is within the
scope of EU competence. The more recent case-law indicates, however, that
they would only exercise such power in cases where the competence exercised
by an EU institution was clearly in excess of that accorded by the Treaties, and
then only after the ECJ has been given the opportunity to rule on the contested
provision.”15 [Emphasis added.]
In ESM Treaty (Temporary Injunctions), 2BvR 1390/12, Judgment of 12

December 2012, the German Federal Consitutional Court stated that the
German Parliament must retain control over fundamental budgetary decisions.
This also necessitated sufficient information being made available to the
national parliament to allow it to exercise its overall budgetary responsibility.
In ESM/ECB, 2 BvR 2728/13, Judgment of 14 January 2014, the German

Federal Constitutional Court considered a challenge to the Decision of the ECB
establishing the Outright Monetary Transaction (OMT) programme. This
Decision committed the ECB to purchase bonds of Eurozone states when those
States were unable to sell them on the open market. The Decision was
potentially objectionable for two reasons. First, Article 123 TFEU prohibits the
purchase of Member State debt instruments by the ECB. Secondly, it is unclear
that the Treaties grant the ECB such wide-ranging powers. The German
Constitutional Court stated:
38. It would have to be considered a manifest and structurally

significant transgression of its mandate if the European Central Bank
acted beyond its monetary policy mandate, or if the prohibition of
monetary financing of the budget was violated by the OMT programme.
The Constitutional Court considered that, if the OMT decisions were to exceed
the mandate of the ECB or infringe Article 123 TFEU, it would have to uphold
the constitutional challenges to OMT decisions. It therefore referred a series
of questions to the CoJ.
In Gauweiler v. Bundestag ECLI:EU:C:2015:400, Judgment of 16 June 2015,

(Case C-62/14) the CoJ considered the questions referred by the German
Federal Consitutional Court. In essence, these questions asked whether the
Treaties and the Protocol on the ESCB16 and the ECB must be interpreted as
permitting the ESCB to adopt a programme for the purchase of government
bonds on secondary markets, such as the programme announced in the press
release referred to in the minutes of the ECB meeting of 5 and 6 September
2012.
14 Chalmers (3rd ed.), at 231.

15 Craig and de Búrca, EU Law: Text, Cases and Materials (5th ed. Oxford University Press,
2012), at 283.
16 The European System of Central Banks.

The CoJ determined that the provisions were to be interpreted as permitting
the ESCB to adopt such a programme for the purchase of government bonds.
The Court reasoned, inter alia, that Article 123(1) TFEU did not prevent the
ESCB from adopting such a programme and implementing it under conditions
which do not result in the ESCB’s intervention having an effect equivalent to
that of a direct purchase of government bonds from the public authorities and
bodies of the Member States. The CoJ accepted that the ECB had to take
some risk and accordingly, the programme was not ultra vires the powers of
the ESCB in the Treaties and Protocol. What is significant here is that the
German Federal Constitutional Court accepted this ruling, albeit reluctantly.
Yet in a recent ruling, the German Federal Constitutional Court refused to

accept the CJEU’s ruling that the ECB’s Public Sector Purchsing Programme
(PSPP) was within EU competence and prohibited the Bundesbank from
making purchases under the programme unless the ECB could demonstrate,
within a three month period, that the programme was proportionate.
The Weiss judgment (Case C-493/17 EU:C:2018:1000; BVerfG, Judgment of

the Second Senate of 05 May 2020 - 2 BvR 859/15) sent shockwaves across
EU27 as it was the first time that the German Federal Constitutional Court found
a CJEU judgment to be ultra vires and inapplicable in Germany.
The German Federal Constitutional Court reasoned that the Federal

Government and the German Bundestag violated the complainants’ rights
under Art. 38(1) of the Basic Law (Grundgesetz – GG) by failing to take steps
challenging that the ECB, in its decisions on the adoption and implementation
of the PSPP, neither assessed nor substantiated that the measures provided
for in these decisions satisfy the principle of proportionality.
It acknowledged that the CJEU had taken a “different stance” in its Judgment
of 11 December 2018 in response to the request for a preliminary ruling from
the Federal Constitutional Court; however, it stated that this did not merit a
different conclusion in the present proceedings.
It further held that the review undertaken by the CJEU with regard to whether
the ECB’s decisions on the PSPP satisfy the principle of proportionality was
not comprehensible and to this extent, the judgment was thus rendered ultra
vires.
As regards the complainants’ challenge that the PSPP effectively circumvents

Art. 123 TFEU, the Federal Constitutional Court did not find a violation of the
prohibition of monetary financing of Member State budgets, thus one could
argue that the the German Federal Constitutional Court’s objections to the
CJEU’s ruling appear to be more procedural than substantive in nature.
Nevertheless in echoes of its Solange jurisprudence, the German Court stated

that
. . . as long as the CJEU applies recognised methodological principles

and the decision it renders is not arbitrary from an objective perspective,
the Federal Constitutional Court must respect the decision of the CJEU
even when it adopts a view against which weighty arguments could be
made.

The German Court further held that the CJEU judgment:
. . . contradicts the methodological approach taken by the CJEU in

virtually all other areas of EU law. It fails to give effect to the function of
the principle of conferral as a key determinant in the division of
competences, and to the methodological consequences this entails for
the review as to whether that principle is observed.
It stated:
. . . the interpretation of the principle of proportionality undertaken by

the CJEU, and the determination of the ESCB’s mandate based
thereon, exceed the judicial mandate conferred upon the CJEU in Art.
19(1) second sentence TEU. With self-imposed restraint, the CJEU
limits its judicial review to whether there is a “manifest” error of
assessment on the part of the ECB, whether the PSPP “manifestly”
goes beyond what is necessary to achieve its objective, and whether its
disadvantages are “manifestly” disproportionate to the objectives
pursued. This standard of review is by no means conducive to
restricting the scope of the competences conferred upon the ECB,
which are limited to monetary policy. Rather, it allows the ECB to
gradually expand its competences on its own authority; at the very least,
it largely or completely exempts such action on the part of the ECB from
judicial review. Yet for safeguarding the principle of democracy und
upholding the legal bases of the European Union, it is imperative that
the division of competences be respected.
In light of the aforementioned considerations, the Federal Constitutional

Court is not bound by the CJEU’s decision but must conduct its own
review to determine whether the Eurosystem’s decisions on the
adoption and implementation of the PSPP remain within the
competences conferred upon it under EU primary law. As these
decisions lack sufficient proportionality considerations, they amount to
an exceeding of the ECB’s competences.17
In an unprecedented move, the CJEU then issued a press release reaffirming

its place in the EU legal order. It stated:
. . . to ensure that EU law is applied uniformly, the Court of Justice alone

– which was created for that purpose by the Member States – has
jurisdiction to rule that an act of an EU institution is contrary to EU law.
Divergences between courts of the Member States as to the validity of
such acts would indeed be liable to place in jeopardy the unity of the
EU legal order and to detract from legal certainty. Like other authorities
of the Member States, national courts are required to ensure that EU
law takes full effect. That is the only way of ensuring the equality of
Member States in the Union they created.18
17 ECB decisions on the Public Sector Purchase Programme exceed EU competences, Press
Release No. 32/2020 of 05 May 2020
18 Press release following the judgment of the German Constitutional Court of 5 May 2020,
Court of Justice of the European Union, PRESS RELEASE No 58/20, Luxembourg, 8 May
2020.

The ECB stated that it “takes note” of the judgment and “remains fully
committed to doing everything necessary within its mandate to ensure that
inflation rises to levels consistent with its medium-term aim and that the
monetary policy action taken in pursuit of the objective of maintaining price
stability is transmitted to all parts of the economy and to all jurisdictions of the
euro area.”19
European Commission President Ursula Von der Leyen issued a statement on

May 10, 2020 confirming:
. . . the final word on EU law is always spoken in Luxembourg. Nowhere

else. The European Commission's task is to safeguard the proper
functioning of the Euro system and the Union's legal system. We are
now analysing the ruling of the German Constitutional Court in detail.
And we will look into possible next steps, which may include the option
of infringement proceedings. The European Union is a community of
values and of law, which must be upheld and defended at all times. This
is what keeps us together. This is what we stand for.
At the end of June 2020, the parties involved (ECB, German parliament,
German government, and Deutsche Bundesbank) finally found a solution: The
ECB – through Deutsche Bundesbank – provided non-public minutes
containing the required proportionality considerations to fulfil the requirements
of the BVerfG judgement. This opens the way for Deutsche Bundesbank to
continue participating in the PSPP. However, it also means that the ECB will
have to provide more balanced proportionality considerations for comparable
future bond purchase decisions.20
While this “fix” avoids the German institutions having to side with either the
CJEU – sparking a constitutional crisis – or the German Federal Constitutional
Court – which would have undermined quantitative easing in the Eurozone it
still leaves the door open to more Eurosceptic jurisdictions such as Poland and
Hungary, to follow Germany’s lead, and thus continues to pose a threat to the
supremacy of EU law.
In June 2021, the European Commission confirmed that it had initiated

infringement proceedings against Germany over the German Federal
Constitutional Court’s decision in Weiss, issuing a letter of formal notice
alleging a violation of fundamental principles of EU law. It cited, in particular,
the principles of autonomy, primacy, effectiveness, and uniform application of
Union law, as well as the respect of the jurisdiction of the European Court of
Justice under Article 267 TFEU.21
The Commission stated, “the German Court deprived a judgment of the

European Court of Justice of its legal effect in Germany, breaching the principle
of the primacy of EU law. This is the reason now for starting this infringement
procedure.” It also noted that, by order of April 29, 2021, the German
19 PRESS RELEASE, ECB takes note of German Federal Constitutional Court ruling and
remains fully committed to its mandate, 5 May 2020.
20 “Judgement of the BVerfG dated 5 May 2020: ECB’s Public Sector Asset Purchase
Program” Lexology, accessible at https://www.lexology.com/library/detail.aspx?g=a51b3a53-

df5f-4f51-b466-c249f806a901.
21 European Commission June infringements package: key decisions available at
https://ec.europa.eu/commission/presscorner/detail/en/inf_21_2743

Constitutional Court had rejected two requests seeking an order of execution
for the Weiss judgment of May 5, 2020. That order, it said, did not reverse the
breaches concerning the principle of primacy of Union law. The Commission
considers that the judgment constitutes “a serious precedent, both for the future
practice of the German Constitutional court itself, and for the supreme and
constitutional courts and tribunals of other Member States.”
Depending on Germany’s response to the LFN it is likely that this matter is

unlikely to be resolved for a number of years yet.
4.2 Ireland22
Ireland joined the EEC in 1973 with the UK and Denmark. Ireland’s traditional
dualist approach to international law necessitated a domestic measure to
incorporate EC Law into Irish domestic law. The European Communities Act,
1972 was enacted. Section 2 of the European Communities Act 1972 provides
[T]he treaties governing the European Communities and the existing

and future acts adopted by the institutions of those Communities shall
be binding on the state and shall be part of the domestic law thereof
under the conditions laid down by those treaties.
Domestic legislation would not suffice for EEC membership. Accession to the
supranational EEC involved the transfer of powers to the institutions of the
Communities, which was incompatible with Bunreacht na h-Éireann. To allow
accession, the Constitution was amended and through a general amending
clause which would limit each constitutional provision.
The Constitutional amendment was broad and granted constitutional immunity

to many Community measures and measures adopted by the state to fulfil
Community obligations. The amendment was limited, however, in the case of
measures adopted by the State to fulfil Community obligations, to measures
“necessitated by the obligations” of Community law. The amendment inserted
at Article 29.4.3˚ provided:
The State may become a member of the European Coal and Steel
Community (established by Treaty signed at Paris on the 18th day of
April, 1951), the European Economic Community (established by Treaty
signed at Rome on the 25th day of March, 1957) and the European
Atomic Energy Community (established by Treaty signed at Rome on
the 25th day of March, 1957). No provision of this Constitution
invalidates laws enacted, acts done or measures adopted by the State
necessitated by the obligations of membership of the Communities
or prevents laws enacted, acts done or measures adopted by the
Communities, or institutions thereof, from having the force of law in the
State. [Emphasis added.]
It was unclear whether an amendment to the EEC Treaty would be covered by

the amendment. The first major reform of the founding Treaties, the SEA of
1987 was considered by the Supreme Court in Crotty v. An Taoiseach [1987]
IR 713. The Supreme Court considered whether ratification of Treaty
amendments and specifically whether ratification of the SEA was covered
by the Constitutional amendment.
22See Moriarty, “Three Spheres of Human Rights Protection” in Human Rights Law, (3rd ed.,
Oxford University Press/Law Society of Ireland, 2010).

A single judgment was delivered by the Supreme Court on the question of the
constitutionality of the European Communities (Amendment) Act 1986. The
parties agreed that ratification of the SEA was not necessitated by the
obligations of membership. The second sentence of the amendment was
therefore not of relevance. The Supreme Court considered the authorisation
contained in the first sentence. For the Supreme Court, Finlay CJ held (at 767):
It is the opinion of the court that that the first sentence of [the
Constitutional amendment] must be construed as an authorisation given
to the Sate not only to join the Communities as they stood in 1973, but
also to join in amendments of the Treaties so long as such amendments
do not alter the essential scope or objectives of the Communities. To
hold that [the amendment] does not authorise any form of amendment
of the Constitution would be too narrow a construction; to construe it as
an open authority to agree, without further amendment to the
Constitution, to any amendment to the treaties would be too broad.
The Supreme Court refused to declare the Act invalid.
Separate judgments were delivered by the judges of the Supreme Court on the
issue of whether Title III, being the treaty whereby Ireland agreed to adopt
its foreign policy positions within the framework of European Political
Cooperation, not being part of the domestic law incorporated by the Act
of 1986, was unconstitutional. The majority considered that Title III involved
an impermissible transfer of sovereign power from the executive.
The Supreme Court held that the provisions of the SEA relating to European
Political Co-operation (EPC) went beyond the scope of what was
permissible and required a further constitutional amendment and
consequently a referendum.
Referendums have been held in Ireland at the time of each major amendment
to the founding treaties, but not for the European Stability Mechanism Treaty.23
Under the Treaty of Amsterdam - new provisions afforded Member States

greater discretion on whether to participate in certain measures. A new type of
constitutional amendment was necessary and that chosen enabled the State
to exercise certain options and discretions contained in Amsterdam subject to
prior approval of both Houses of Oireachtas.
Under the Nice Treaty - similar formula was adopted. The traditional
“necessitated by the obligations of membership formula” was retained at Article
29.4.10°.
Post-Nice - Article 29.4.6° and 8° were amended to incorporate this power of

State to exercise said options and discretions subject to the prior approval of
both Houses of the Oireachtas.
The second Irish referendum on the Treaty of Lisbon took place on 2nd October
2009. The Twenty-Eighth Amendment of the Constitution (Treaty of Lisbon)
Act, 2009 was enacted on 15th October 2009 and amends Article 29.4. The
23The failure to hold a referendum was challenged in Pringle v. Ireland [2012] IEHC 296; [2012]
IESC 47, which is discussed below.

Treaty of Lisbon provides for the continued existence of the Treaty on
European Union and the European Community Treaty, the latter renamed the
Treaty on the Functioning of the European Union. The pillar structure
introduced by the Maastricht Treaty is modified and largely disappears although
Common Foreign and Security Policy remains subject to special rules and
specific procedures.
The Twenty-Eight Amendment of the Constitution (Treaty of Lisbon) Act, 2009

inserts new subsections 4˚, 5˚, 6 ˚, 7˚, 8 ˚and 9 ˚ to Article 29.4. The Act provides
for the deletion of part of the pre-existing subsection 3°, and the entirety of
subsections 4°, 5°, 6°, 7°, 8°, 9°, 10° and 11° of Article 29.4 of the Constitution.
The deletions from subsections 3° to 8° removed provisions from the
Constitution which became obsolete when the Treaty of Lisbon entered into
force. The new subsection 5˚ is enabling, allowing the State to ratify the Treaty
of Lisbon and to be a member of the EU as established by it.
The previous subsection 10˚ ensured legal compatibility between the Treaties
and the Irish Constitution, providing constitutional cover for laws, acts and
measures ‘‘necessitated by the obligations’’ of membership of the EU and the
European Communities. This constitutional cover is carried forward in the new
subsection 6˚ which contains the “necessitated by the obligations of
membership” formula which has been in place since Ireland’s accession to the
EEC in 1973. This provision aims to ensure legal compatibility between EU law
and the Irish Constitution, and to carry forward cover for laws, acts and
measures “necessitated by the obligations of membership, before and after the
Treaty of Lisbon entered into force.24
The new subsection 7˚ provides for the State to avail of the options and
discretions under the Treaty. The new subsection 8˚ requires the approval of
the Houses of the Oireachtas as a condition for action in specific
circumstances. The prohibition on Irish participation in an EU Common
Defence policy is carried forward in new subsection 9˚.
Post- Lisbon, Article 29.4 provided:
4° Ireland affirms its commitment to the European Union within

which the member states of that Union work together to promote
peace, shared values and the well-being of their peoples.
5° The State may ratify the Treaty of Lisbon amending the Treaty
on European Union and the Treaty establishing the European
Community, signed at Lisbon on the 13th day of December 2007
(“Treaty of Lisbon”), and may be a member of the European
Union established by virtue of that Treaty.
6° No provision of this Constitution invalidates laws enacted, acts
done or measures adopted by the State, before, on or after the
entry into force of the Treaty of Lisbon, that are necessitated by
the obligations of membership of the European Union referred
to in subsection 5° of this section or of the European Atomic
Energy Community, or prevents laws enacted, acts done or
measures adopted by—
24 See Explanatory Memorandum to the Twenty-Eighth Amendment to the Constitution (Treaty

of Lisbon) Bill, 2009

i the said European Union or the European Atomic
Energy Community, or by institutions thereof,
ii the European Communities or European Union existing
immediately before the entry into force of the Treaty of
Lisbon, or by institutions thereof, or
iii bodies competent under the treaties referred to in this
section, from having the force of law in the State.
7° The State may exercise the options or discretions—
i to which Article 20 of the Treaty on European Union
relating to enhanced cooperation applies,
ii under Protocol No. 19 on the Schengen acquis
integrated into the framework of the European Union
annexed to that treaty and to the Treaty on the
Functioning of the European Union (formerly known as
the Treaty establishing the European Community), and
iii under Protocol No. 21 on the position of the United
Kingdom and Ireland in respect of the area of freedom,
security and justice, so annexed, including the option
that the said Protocol No. 21 shall, in whole or in part,
cease to apply to the State,
but any such exercise shall be subject to the prior
approval of both Houses of the Oireachtas.
8° The State may agree to the decisions, regulations or other
acts—
i under the Treaty on European Union and the Treaty on
the Functioning of the European Union authorising the
Council of the European Union to act other than by
unanimity,
ii under those treaties authorising the adoption of the
ordinary legislative procedure, and
iii under subparagraph (d) of Article 82.2, the third
subparagraph of Article 83.1 and paragraphs 1 and 4 of
Article 86 of the Treaty on the Functioning of the
European Union, relating to the area of freedom, security
and justice,
but the agreement to any such decision, regulation or act
shall be subject to the prior approval of both Houses of
the Oireachtas.25
9° The State shall not adopt a decision taken by the European
Council to establish a common defence pursuant to Article 42 of
the Treaty on European Union where that common defence
would include the State. [Footnote added.]
New Subsection 6° is modelled on the previous Article 29.4.10°. It aims to

ensure legal compatibility between EU law and the Irish Constitution, and would
carry forward constitutional cover for laws, acts and measures ‘‘necessitated
by the obligations’’ of EU membership, before and after the Treaty of Lisbon
enters into force.
On February 2, 2012, the 17 Euro area Member States signed a Treaty, the
European Stability Mechanism Treaty, to establish a new permanent
international financial institution, the European Stability Mechanism (ESM).26
25 The so-called passarelle provisions.

26 See Heading 24 of Chapter 1.

The institution is an intergovernmental organisation under public international
law and is based in Luxembourg.
The failure to hold a referendum in Ireland regarding the ESM Treaty was the
subject matter of an unsuccessful legal challenge in Pringle v. Ireland [2012]
IEHC 296; [2012] IESC 47.27
The plaintiff argued, and it was accepted by the State defendants, that the ESM
Treaty was not a treaty necessitated by the obligations of membership of the
EU and was therefore not protected by Article 29.4.6˚ of Bunreacht na
hÉireann.28 International law is used as a means of furthering European
integration but with the consequence that the ESM is outside the EU legal
order.29
The nub of the Crotty issue in Pringle was the plaintiff/appellant’s argument that
participation in the ESM Treaty involved a transfer of sovereignty to the ESM,
because such participation impinged on and diminished Ireland’s budgetary,
economic and fiscal sovereignty, in that it entailed an open-ended and
irreversible transfer of powers to an autonomous institution that exposed
Ireland to a permanent commitment to provide funding and assume liability,
without limit, for the debts of other members and on the basis of decisions that
may be made regardless of, and in opposition to, Ireland’s views, in
circumstances where there is no option or procedure for withdrawal from the
mechanism.
The Supreme Court determined that agreement and ratification of the ESM
Treaty constituted a permissible exercise of a power of the executive. The
Supreme Court held that the ESM Treaty did not involve a transfer of
sovereignty so as to make it incompatible with the Constitution such that a
referendum would be necessary. The Supreme Court considered that the ESM
did not involve any impermissible transfer of powers from the Executive. For
the majority30, Denham CJ held:
26. On the first issue, applying the principles stated in Crotty to the facts
of the case, I am satisfied that the Government did not abdicate,
alienate, cede, or subordinate its power to another. The decision of the
Government to enter into the ESM Treaty was a policy decision within
its executive power, pursuant to the Constitution, and so did not involve
an impermissible transfer of sovereignty.
On March 2, 2012, 25 of the then 27 Member States signed the Treaty on

Stability, Coordination and Governance in the Economic and Monetary Union
(TSCG) aimed at strengthening fiscal discipline and introducing stricter
surveillance within the Eurozone area, in particular by establishing a “balanced
budget” rule. The two EU Member States not involved are the UK and the
27 Both the High Court and the Supreme Court referred questions to the Court of Justice; Pringle
v. Government of Ireland, Ireland and the Attorney General [2012] ECR, nyr, 27th November
2012 (Case 370/12).
28 This issue is discussed in the dissenting judgment of Hardiman J.
29 De Witte, “The European Treaty Amendment for the Creation of a Financial Stability
Mechanism”, European Policy Analysis, 2011:6, 1, 8. (www.sieps.ie).

30 Murray, Fennelly, O’Donnell, McKechnie and Clarke JJ concurring. Separate concurring
judgments were delivered by O’ Donnell J, McKechnie J, and Clarke J. A dissenting judgment

was delivered by Hardiman J.

Czech Republic. A referendum was held in Ireland to permit Ireland to ratify
the TSCG. A new provision was inserted into Article 29.4 of the Irish
Constitution at paragraph 10˚,which provides:
10° The State may ratify the Treaty on Stability, Coordination and
Governance in the Economic and Monetary Union done at Brussels on
the 2nd day of March 2012. No provision of this Constitution invalidates
laws enacted, acts done or measures adopted by the State that are
necessitated by the obligations of the State under that Treaty or
prevents laws enacted, acts done or measures adopted by bodies
competent under that Treaty from having the force of law in the State.
The TSCG entered into force on January 1, 2013. This Treaty is sometimes
referred to as the Fiscal Compact.
The constitutional provisions were considered in Meagher v. Minister for

Agriculture [1994] 1 IR 329 and in Maher v. Minister for Agriculture and Food
[2001] 2 IR 139.
In general, the principle of supremacy has been accepted by the Irish courts.
In Meagher v. Minister for Agriculture [1994] 1 IR 329, Blayney J commented
(at 360), “[i]t is well established that Community law takes precedence over our
domestic law. Where they are in conflict it is Community law that prevails.”
In Smith v. Meade & Anor. [2009] 3 IR 335 (Peart J) the combined significance
of supremacy and the principle of indirect effect is apparent. Peart J stated:
“In my view the conclusion to the issue for determination in this case is reached
by route of harmonious interpretation and the primacy of community law...”
The plaintiff had been injured in a car accident while a passenger in part of a
vehicle not designed or constructed with seating accomodation for passengers.
The contract of insurance in respect of the vehicle excluded any indemnity in
respect of the plaintiff’s injuries as he was seated in the rear part of the vehicle
which was not fitted with a seat. Ireland should have, but had not, transposed
a directive which required all passengers to be covered by insurance. On the
date the accident occurred, Irish law did not comply with the EU requirement
that all passengers be insured. The High Court, applying the principles of
indirect effect and supremacy of EU law, determined that exclusion clauses in
insurance contracts were void. This resulted in a directive having a significant
impact on a private party (the insurance company) which was disentitled from
relying on the exclusion clause.31
In SPUC v. Grogan [1989] IR 752, a potential conflict arose between EU Law

and the constitutionally protected right to life of the unborn. The Society for the
Protection of Unborn Children (SPUC) sought a declaration that distribution of
information concerning abortion clinics in the UK was unlawful. The High Court
made a preliminary reference to the CoJ asking whether abortion could be
regarded as a “service” within the meaning of EC law. Pending the CoJ’s ruling,
the High Court declined to grant or refuse the interlocutory injunction to restrain
the defendants from distributing abortion information.
31Note however, the judgment of the Court of Appeal (Smith v. Meade & Anor. [2016] IECA
389), which is discussed in greater detail below.

The High Court decision was appealed to the Supreme Court, which allowed
the appeal to the extent of ordering an interlocutory injunction to protect the
constitutional right pending the CoJ ruling. Walsh J seemed to suggest that he
would not give preference to the European provision. McCarthy J. raised the
question of whether by enacting the 8th Amendment to the Constitution (the
protection of the right to life of the unborn) the Irish people might have acted in
breach of the European Treaty.
In SPUC v. Grogan [1991] I ECR 4685 (Case C-159/90), the CoJ ruled that
abortion could be regarded as a service within the meaning of EU law, but
avoided the controversial issue of whether the Freedom to Provide Services
provisions in the Treaty prevented Ireland from forbidding Irish residents to
travel to other EU State where abortion was legal. The rationale for the decision
was that there was no economic link between the student associations who
sought to disseminate the abortion information and the abortion clinics and that
consequently the matter fell outside the scope of EU Law. On that occasion,
the Irish courts were not required to choose between EU law and the
constitutional protection.
This chapter has examined supremacy from the perspective of Ireland and
Germany. Each of the other Member States has its own perspective. Craig
and de Búrca state that “[m]ost national courts do not accept the unconditionally
monist view of the ECJ as regards the supremacy of EU Law. While they
accept the requirements of supremacy in practice, most regard this as flowing
from their national constitutions. ..”32
5. Conclusions
The principle of supremacy emerges from the case-law of the CoJ. The
principle does not have a Treaty basis and even the Treaty of Lisbon does not
provide for a Treaty basis for supremacy although the principle, now called
primacy is set out in a declaration attached to the Treaties as amended by the
Treaty of Lisbon. The principle means that EU Law is superior to all national
laws, including the constitutional provisions in national legal orders and that in
the event of a conflict, national courts are the required to disapply the conflicting
national measure to give effect to the EU norm. Supremacy must be examined
from the perspective of the EU but also from the perspective of the Member
States.
o Lenaerts, and Corthaut, “Of Birds and Hedges: The Role of Primacy in
Invoking Norms of EU Law” (2006) 31 ELR 287;
o Wyatt and Dashwood, European Union Law (6th ed., Hart Publishing, 2011),
chapter 8;
o Foster, Foster on EU Law (7h ed., Oxford University Press, 2019); (4th ed.,
Oxford University Press, 2013), chapter 5;
o Fahey, “A Constitutional Crisis in a Teacup: The Supremacy of EC Law in
Ireland” (2009) 15 EPL 515;
32Craig and de Búrca, EU Law: Text, Cases and Materials (5th ed., Oxford University Press,
2012), at 256.

o Dougan, “When Worlds Collide! Competing Visions of the Relationship
between Direct Effect and Supremacy” (2007) 44 CMLRev 931.

Chapter 7
Human Rights in EU Law
1. Required Reading
University Press, 2020), chapters 2 and 12;
University Press, 2014), pp 146-162.
2. Introduction
2.1 General Principles of EU Law
The EEC Treaty was a framework Treaty. The Court of Justice developed a
system of general principles to supplement the Treaty. An obvious gap in the
EEC legal order was a bill of rights and, as discussed below, the CoJ
determined that there existed a body of fundamental rights as general principles
of EC Law sourced in the constitutional traditions of the Member States and
international Treaties.1
General principles are a source of European law. They are unwritten principles
derived from and inspired by the legal traditions of the Member States. General
principles are binding on the institutions and on the Member States acting within
the scope of European law. General principles are used by the CoJ in
interpreting and applying European law. General principles are also used by
the CoJ in judicially reviewing acts of the EU institutions. In Nold v. Commission
[1974] ECR 491 (Case 4/73), the CoJ made it clear that laws can be annulled
for incompatibility with general principles.
In safeguarding these rights, the Court is bound to draw inspiration from

the constitutional traditions of the Member States and it cannot
therefore uphold measures which are incompatible with fundamental
rights recognised and protected by the Constitutions of those States.
Craig and de Búrca considered that:
The EC Treaty does not provide an explicit, detailed set of principles

against which to test the legality of Community or State action, within
the sphere covered by Community Law. It has therefore largely fallen
to the [CoJ] to fashion principles of administrative legality.2
According to Hartley, the CoJ has:
[U]tilised general principle of law to cloak the nakedness of judicial

decision-making: the idea is that, if a ruling can be shown to be derived
1 See Moriarty, “Human Rights in the EU” in Moriarty and Massa (eds.) Human Rights Law
(Oxford University Press/Law Society of Ireland), at 168.
2 Craig and de Búrca (2003 ed.), at 371.

from a principle of sufficient generality as to command common assent,
a firm legal foundation of the judgment will be provided. For this reason,
the European Court has developed a doctrine that rules of Community
law may be derived not only from treaties and legislation, but also from
the general principles of law.3
General principles developed by the CoJ include proportionality, non-

discrimination, legal certainty (including non-retroactivity), legitimate
expectations, and fundamental rights. More recently, the Court held the
protection of natural and legal persons against arbitrary or disproportionate
intervention by the public authorities in the sphere of those persons’ private
activities to be a general principle of EU law.4
In terms of the hierarchy of EU norms, the general principles of EU Law rank

beneath the Treaties and the Charter of Fundamental Rights but above all other
EU laws. Craig and de Búrca explain that after Lisbon, “[t]here are now five
principal tiers to the hierarchy of norms in EU law, which are in descending
order: the constituent Treaties and Charter of Rights; general principles of law;
legislative acts; delegated acts and implementing acts.”5 [Emphasis added.]
This chapter will look at human rights in the EU, including how those rights are
protected as general principles of EU law. Unfortunately, discussion of the other
general principles is beyond the scope of this course.
2.2 Human Rights as General Principles of EU Law
The Foundation Treaties establishing the Communities (EEC, ECSC,

EURATOM) did not contain a catalogue of human rights.
This exclusion can be explained by the political failure of the European

Defence Community Treaty and the consequent failure of the European
Political Community Treaty (which was to include the application of the
European Convention on Human Rights), which meant that a more
cautious approach was taken when drafting the EEC and Euratom
Treaties.6
In a number of early cases, the CoJ declined to take human rights

considerations into account; Stork v. High Authority [1959] ECR 17 (Case 1/58)
and Ruhr v. High Authority [1960] ECR 47 (Joined Cases 16, 17 and 18/59).
However, it soon became apparent that lawyers in some Member States,
particularly Germany, would not accept a system which was not subject to
review for compatibility with human rights. The perceived threat was from a
supranational legal order which, owing to the doctrine of supremacy developed
by the CoJ in Costa v. ENEL [1964] ECR 565 (Case 6/64), might take
precedence over domestic legal provisions. This was a particularly sensitive
4 See État luxembourgeois (Judicial protection against requests for information in tax law)
(Joined Cases C-245/19 and C-246/19).
5 Craig and de Búrca (5th ed.), at 103. See also Moriarty, “Human Rights in EU Law” in Moriarty
and Massa (eds.) Human Rights Law (3rd ed., Oxford University Press/Law Society of Ireland,
2010), at 169-171.

subject in Member States which had introduced strong human protections into
their Constitutions after World War II.
In a remarkable feat of judicial activism, the CoJ recognised an unwritten

catalogue of fundamental human rights enshrined in the general principles of
EC law and held that it had jurisdiction to review acts of the institutions to
ensure compatibility with this human rights standard.
The first case in which the Co J explicitly recognised the protection of

fundamental rights as general principles was in Stauder v. City of Ulm [1969]
ECR 419 (Case 29/69). The applicant believed that his right to dignity was
affected by an EU legal act. The EU provision afforded cheap butter to certain
persons. The German implementation of the measure required a recipient to
give his name and personal details. Other Member States implemented the
measure without requiring personal information. The CoJ referred to this
method of implementation and stated:
Interpreted in this way the provision at issue contains nothing capable

of prejudicing the fundamental rights enshrined in the general principles
of Community law and protected by the Court.
As the EU measure was capable of being interpreted in a way which did not
infringe an individual’s dignity the EC general principles of law were not
infringed. The CoJ took an activist role in proclaiming that human rights were
protected as general principles. This judgment indicated that human rights
were protected in EC law but did not state what other rights might be protected
nor to what standard.
In Internationale Handelsgesellschaft [1970] ECR 1125 (Case 11/70) the CoJ

emphasised that the validity of EU law could not be tested against national legal
provisions:
Recourse to the legal rules or concepts of national law in order to judge

the validity of measures adopted by the institutions of the Community
would have an adverse effect on the uniformity and efficacy of
Community law. The validity of such measures can only be judged in
the light of Community law. In fact, the law stemming from the Treaty,
an independent source of law, cannot because of its very nature be
overridden by rules of national law, however framed, without being
deprived of its character as Community law and without the legal basis
of the Community itself being called into question.
Instead, the measures would be subject to review by the CoJ for compatibility
with human rights in EC law:
However, an examination should be made as to whether or not any

analogous guarantee inherent in community law has been disregarded.
In fact, respect for fundamental rights forms an integral part of the
general principles of law protected by the Court of Justice. The
protection of such rights, whilst inspired by the Constitutional traditions
common to the Member States, must be ensured within the framework
of the structure and objectives of the Community.
This judgment gave an indication that the constitutions of the Member States
would be used as a source of inspiration for the human rights to be protected

by the CoJ. It was unclear whether a right would have to be protected in the
Constitution of each of the Member States before it received CoJ protection.
Neither was it clear whether a right protected in the Constitution of only one
Member State would be protected.
In Nold v. Commission [1974] ECR 491 (Case 4/73), the CoJ identified another
indicator of the rights protected in EC law:
Similarly, international Treaties for the protection of human rights on

which the Member States have collaborated or of which they are
signatories, can supply guidelines which should be followed within the
framework of Community law.
Nold is a significant decision as the CoJ indicated that it had the power to annul
EU measures incompatible with the human rights protected as general
principles.
In each of the three cases discussed the CoJ accepted that the rights at issue
were protected but also stated that they were not absolute. The CoJ indicated
in each of these three cases that the rights were not absolute.
An example of a recent decision is Mangold v. Helm [2005] ECR I 9981 (Case

C-144/04), in which the CoJ held that non-discrimination on the grounds of age
was a general principle of European Law.
Craig and de Búrca state that “despite its increasing engagement with human
rights arguments, the number of cases in which the [CoJ] has actually annulled
the legislation challenged remains...relatively low. Overall, there has been a
greater degree of success in challenging individual administrative acts of the
Commission or other EU actors...”7
An example of the CoJ annulling legislation is the decision in Kadi v. Council

[2008] ECR I 6351 (Cases C-402/05 P and C-415/05 P). The CoJ struck down
EU Regulations implementing UN Security Council Resolutions adopted after
the 11 September 2001 attacks in the US which required States to freeze
assets of those associated with the Taliban, Osama bin Laden or Al-Qaeda.
The applicants were named on the UN list. The CoJ determined that the EU
measures violated the right to be heard and the right to an effective remedy
and that the contested act should be annulled.
The identification of the constitutional traditions and international human rights

Treaties to which the Member States are party was not unproblematic. What if
a fundamental right was protected in only one Member State? Would the CoJ
apply a maximum standard, protecting every right that was protected in each
Member State? Or would the CoJ adopt a minimum standard only protect rights
which were protected in each of the national legal systems of the Member
States?
Very generally speaking the CoJ is prepared to recognise rights as general

principles when a number of States recognise the right. The CoJ and the
General Court frequently refer to the ECHR as a source of rights. Since the
drafting of the Charter of Fundamental Rights and even prior to the Lisbon
7Craig and de Búrca, EU Law: Text, Cases and Materials, (5th ed., Oxford University Press,
2011), at 372

Treaty, the CoJ and the General Court increasingly referred to this document.
However, as it had not been given legally binding status in the Treaty of Nice,
most often the references in the case-law were to a right being affirmed in the
Charter. An example is effective judicial protection, which right the CoJ stated
in Unibet (London) Ltd v. Justitiekananslerm [2008] ECR (C-432/05), had been
affirmed in Article 47 of the Charter. Post-Lisbon, the Charter has legally
binding status and this is emphasised in the more recent decisions of the CoJ.
In terms of which international Treaties to which the CoJ has regard, the Court
has emphasised the significance of the European Convention on Human Rights
(ECHR) and the case-law of the European Court of Human Rights (ECtHR).
For example, in Roquette Frères SA v. Directeur général de la concurrence, de
la consommation et de la répression des fraudes [2002] ECR I 9011 (Case C-
94/00), the CoJ stated at paragraph 23:
According to settled case-law, fundamental rights form an integral part

of the general principles of law observance of which the Court ensures.
For that purpose, the Court draws inspiration from the constitutional
traditions common to the Member States and from the guidelines
supplied by international treaties for the protection of human rights on
which the Member States have collaborated or to which they are
signatories. The ECHR has special significance in that respect...
[Emphasis added.]
Subsequent to the introduction of fundamental rights as general principles of

EC law, the three political institutions (European Parliament, Council and
Commission) issued a Joint Declaration on Fundamental Human Rights [1977]
OJ C103/1 stressing the prime importance they attach to the protection of
fundamental human rights, as derived in particular from the Constitutions of the
Member States and the European Convention on Human Rights and
Fundamental Freedoms and indicating their respect for these rights. The
European Council endorsed the Joint Declaration the following year.
3. Amendments to the Treaties

Subsequent to the CoJ’s development of fundamental rights as general
principles of EC law, references to human rights were included in the amending
Treaties.
This process began with the Single European Act of 1987. In the Preamble the
Member States determined:
…to work together to promote democracy on the basis of the

fundamental rights recognised in the constitutions and laws of the
Member states, in the Convention for the Protection of Human Rights
and Fundamental Freedoms and the European Social Charter, notably
freedom, equality and social justice.
The Maastricht Treaty8 required the European Union to respect fundamental

rights as guaranteed by the ECHR and as they result from the constitutional
traditions common to the Member States. This provision was originally not
justiciable.
8 At Article F(2), later Article 6(2) TEU.

The Treaty of Amsterdam declared fundamental human rights as one of “the
basic principles on which the Union [was] founded” and brought the provision
requiring the EU to respect fundamental rights within the jurisdiction of the CoJ.
Post- Amsterdam ex Article 6 TEU9 provided:
1. 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.
2. The 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.
The Amsterdam Treaty made respect for the fundamental principles set out in
ex Article 6(1) TEU a condition of the application for membership of the EU.
The Treaty of Amsterdam also introduced a political mechanism for sanctioning

Member States guilty of a “serious and persistent breach” of the principles on
which the EU was founded, including respect for fundamental rights. Such a
breach could result in the suspension of rights derived from the Treaty,
including voting rights.
Later the Nice Treaty amended the provision on political sanctions of Member
States adding a procedure allowing the Council to make recommendations to
a Member State where there was a risk of a serious breach by a Member State.
The rationale for the amendment was to allow a more gradual response. The
CoJ was given jurisdiction over the procedures of the political sanction
mechanism. The Treaty of Lisbon makes minor amendments to the political
sanction provision, now found at Article 7 TEU, which now refers to “a clear risk
of a serious breach by a Member State of the values referred to in Article 2”
TEU.
Post-Lisbon, Article 2 TEU10 provides:
The Union is founded on the values of respect for human dignity,

freedom, democracy, equality, the rule of law and respect for human
rights, including the rights of persons belonging to minorities. These
values are common to the Member States in a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality
between men and women prevail.
The Treaty of Lisbon also replaced the text of Article 6 TEU. The new Article 6
TEU is set out in full later in this chapter.
Thus far this chapter has considered the possibility of review by the Court of
Justice of EU actions for compatibility with an EU human rights standard.
Another issue is whether the Member States are ever subject to review by the
Court of Justice for compliance with this EU human rights standard? There are
9 There is a new Article 6 TEU post-Lisbon.

10 Ex Article 6(1) TEU.

instances where Member States have been held to be bound by the EU human
rights standard when Member States act in the context of EU law.
Examples11 include where Member States are acting as agents of the

Community, when Member States are applying provisions of EU law based on
protection of human rights and when Member States are derogating from EC
law. In case Schmidberger v. Austria [2003] ECR I 5659 (C-112/00), Austria
sought to derogate from free movement provisions in the Treaty in order to
protect fundamental rights. Austria justified the temporary closure of roads
between Austria and Italy to allow an environmental demonstration, citing
freedom of expression and the right to assembly. The CoJ allowed this,
reasoning that the restrictions on the free movement were necessary and
proportionate.
When Member States act outside the scope of EU law they are not subject to
review by the CoJ for compliance with the EU human rights standard. For
example, in Kremzow v. Austria [1997] ECR I 2629 (Case 299/95), the CoJ
deemed the facts of the case to involve an issue wholly internal to the Member
State, and therefore not subject to review for compatibility with the EU Human
Rights standard.
In NS v. Home Secretary (Case C-411/10) and ME v. Refugee Applications

Commissioner and the Minister for Justice, Equality and Law Reform [2011]
ECR I 13905 (Case C-493/10), the CoJ determined that a decision by a
Member State, exercising its discretion whether to take responsibility for an
asylum application was implementing EU law for the purposes of Article 6 TEU
and Article 51 of the Charter of Fundamental Rights of the EU. Ireland and the
UK were not permitted to transfer asylum seekers to Greece as they were
aware of deficiencies in the asylum procedure and reception conditions in
Greece and the risk that the asylum seeker would be subject to inhuman or
degrading treatment within the meaning of Article 4 of the Charter of
Fundamental Rights of the EU.
4. What Rights are Protected?

Another criticism of the way human rights protection developed in the EU was
that it is not clear what rights were protected until an issue was litigated. It was
possible to identify some of the rights.
While the founding Treaties did not contain a bill of rights the Treaties did
contain several provisions relating to specific human rights protections. In the
EEC Treaty, ex Article 12 EC (now Article 18 TFEU) prohibits discrimination on
the grounds of nationality and ex Article 141 EC (now Article 157 TFEU)
provides for equal pay for equal work for men and women. The Treaty of
Amsterdam added ex Article 13 EC (now Article 19 TFEU) empowering the
institutions to act in order to combat discrimination based on sex, racial or
ethnic origin, religion or belief, disability, age, or sexual orientation.
Furthermore, there are many examples of secondary EC legislation concerned

with protection of fundamental right. Directives, including the Race Directive,
have been adopted pursuant to ex Article 13 EC (now Article 19 TFEU).
11Craig and de Búrca, EU Law: Text, Cases and Materials (4th ed, Oxford University Press,
2007), at 395.

In addition, there exists a considerable body of CoJ and General Court case
law identifying rights protected in EU Law.
Further the Treaty of Lisbon made the Charter of Fundamental Rights of the
EU legally binding. It is not clear, however, whether the Court of Justice will be
restricted from protecting human rights which are not listed in the Charter.
5. The Lisbon Treaty

The Lisbon Treaty inserted a new Article 6 TEU. It provides:
1. The Union recognises the rights, freedoms and principles set out in the
Charter of Fundamental Rights of the European Union of 7 December
2000, as adapted at Strasbourg, on 12 December 2007, which shall have
the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences
of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in
accordance with the general provisions in Title VII of the Charter governing
its interpretation and application and with due regard to the explanations
referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Such accession shall not
affect the Union's competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law.
Two significant changes result from the new Article 6. First, the Charter of
Fundamental Rights is made legally binding as it is afforded the same “legal
status” as the Treaties. The Charter is legally binding from 1 December 2009.
Secondly, Article 6 TEU provides a legal basis for accession to the ECHR.
6. The Charter of Fundamental Rights of the EU

In June 1999, the European Council in Cologne agreed that it was necessary
to establish a Charter of Fundamental Rights ‘in order to make their overriding
importance and relevance more visible to the Union’s citizens. The Charter
was drafted by a Convention, a unique body composed of representatives of
the Member State governments, the Commission, the European Parliament,
and the national parliaments. It deliberated in an open manner and there were
many submissions from civil society and interested parties. In Nice, on 7
December 2000, the European Parliament, the Council, and the Commission
solemnly proclaimed the Charter of Fundamental Rights of the European
Union.
The Charter comprises seven chapters, namely: Dignity, Freedoms, Equality,

Solidarity, Citizenship, Justice and General Provisions. At Nice the Charter
was determined to be declaratory rather than binding. Each chapter contains
a list of rights.

The text of the Charter was adapted with a view to making it legally binding and
this adapted version of the Charter was solemnly proclaimed by the three
political institutions of the EU (the European Parliament, the Council and the
Commission) on 12 December 2007 (OJ C303/01 14.2.2007), the eve of the
signing of the Lisbon Treaty. Craig and de Búrca state that “[o]verall the
Charter could best be described as a creative distillation of the rights contained
in the various European and international agreements and national
constitutions on which the ECJ had for some years already drawn.”12
An example of a CoJ decision discussing the legally binding Charter is the

decision in DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v.
Bundesrepublik Deutschland [2010] ECR I 13849 (Case C-279/09). That case
concerned an application for legal aid in respect of proceedings against
Germany, alleging State Liability for breaches of EU law and in particular the
delayed transposition of directives concerned with the internal market in natural
gas. The CoJ considered the right to an effective remedy as enshrined in the
Charter and stated at paragraphs 30-33:
30. As regards fundamental rights, it is important, since the entry

into force of the Lisbon Treaty, to take account of the Charter,
which has “the same legal value as the Treaties” pursuant to the
first subparagraph of Article 6(1) TEU. Article 51(1) of the
Charter states that the provisions thereof are addressed to the
Member States when they are implementing EU law.
31. … the first paragraph of Article 47 of the Charter provides that

everyone whose rights and freedoms guaranteed by EU law are
violated has the right to an effective remedy before a tribunal in
compliance with the conditions laid down in that article. Under
the second paragraph of Article 47, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal previously established by law. Everyone is
to have the possibility of being advised, defended and
represented. The third paragraph of Article 47 of the Charter
provides specifically that legal aid is to be made available to
those who lack sufficient resources in so far as such aid is
necessary to ensure effective access to justice.
32. … the second paragraph of Article 47 of the Charter

corresponds to Article 6(1) of the ECHR.
The CoJ held:
59. ... the answer to the question referred must be that the principle
of effective judicial protection, as enshrined in Article 47 of the
Charter, must be interpreted as meaning that it is not impossible
for legal persons to rely on that principle and that aid granted
pursuant to that principle may cover, inter alia, dispensation
from advance payment of the costs of proceedings and/or the
assistance of a lawyer.
12Craig and de Búrca, EU Law: Text, Cases and Materials (5th ed, Oxford University Press,
2012), at 395.

The Charter of Fundamental Rights of the EU has the same legal status as the
Treaties and therefore together with the Treaties ranks at the apex of the EU
hierarchy of norms.
General ECLI:EU:C:2012:744 (C-277/11) involved a preliminary reference
from the Irish High Court concerning subsidiary protection. The facts
concerned a Rwandan national of Tutsi ethnicity who applied for asylum in
Ireland in 2008 but who was refused asylum on the grounds that his claims
relating to persecution in Rwanda were not found to be credible. Mr M
subsequently applied for subsidiary protection. That application was rejected
by the Minister in September 2010. The decision rejecting subsidiary protection
relied to a large extent on the earlier decision rejecting Mr M’s asylum
application for its conclusion that Mr M had not established that there were
sufficient grounds to demonstrate that he was at risk of serious harm in his
country of origin, since it was considered there was serious doubts as to the
credibility of his claims. In January 2011 Mr M issued judicial review
proceedings seeking to quash the decision refusing subsidiary protection. He
disputed the legality of the rejection of his subsidiary protection application on
the ground that the procedure for examining the application did not comply with
EU law. In particular, he argued that that the State had failed to comply with its
duty to cooperate with the applicant as mandated by Article 4(1) of the Asylum
Qualification Directive13.
The High Court referred a question aimed at determining whether the duty of
cooperation required the administrative authorities to communicate their
intention to reach a negative decision on a subsidiary protection application in
order to allow an applicant an opportunity to address any aspects of the
intended decision which suggest a negative result. The CoJ rejected the
applicant’s contention that Article 4(1) required the national authority
responsible for examining the application for subsidiary protection to supply the
applicant, before adoption of a negative decision on the application and where
an application for asylum made by the same person has previously been
refused, with the elements on which it intends to base its decision and to seek
the applicant’s observations in that regard.
The CoJ, however, considered that the question referred raised broader issues.
The CoJ emphasised the right to be heard, which it considered to be a
fundamental principle of EU law. The CoJ stressed the importance of Article
41(2) of the Charter of Fundamental Rights of the EU, which provides that the
right to good administration includes, inter alia, the right of every person to be
heard, before any individual measure that would affect him or her adversely is
taken. The CoJ determined that where a Member State chose, as Ireland had
done at the time14, to operate two separate procedures it was necessary to
ensure the right of an applicant to be heard in each of the procedures. The CoJ
held:
91. Rather, when a Member State has chosen to establish two separate
procedures, one following upon the other, for examining asylum
13 Council Directive 2004/38/EC of 29 April 2004 on minimum standards for the qualification
and status of third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the contents of the protection granted, known as
the Asylum Qualifications Directive.
14 See now European Union (Subsidiary Protection) Regulations (SI 426 of 2013).

applications and applications for subsidiary protection, it is important
that the applicant’s right to be heard, in view of its fundamental nature,
be fully guaranteed in each of those two procedures.
The CoJ referred to the obligation of Member States to interpret national law in
the light of EU law and to the obligation not to rely on an interpretation which
would conflict with the fundamental rights or general principles as protected by
EU law:
93. It should be added that, according to the Court’s settled case-law,

the Member States must not only interpret their national law in a manner
consistent with EU law but also make sure they do not rely on an
interpretation which would be in conflict with the fundamental rights
protected by the EU legal order or with the other general principles of
EU law (see Joined Cases C-411/10 and C-493/10N.S. and Others
[2011] ECR I-0000, paragraph 77).”
The CoJ determined that the fact that the applicant has already been duly heard
when his application for refugee status was examined did not mean that that
procedural requirement could be dispensed with in the procedure relating to the
application for subsidiary protection. The High Court decision applying the
reference is at MM v. MJELR [2013] IEHC 9.
The High Court decision was appealed and in November 2014, the Supreme
Court made a further reference to the CoJ, M. v. MJELR (Case C-560/14),
asking:
Does the “right to be heard” in European Union Law require that an

applicant for subsidiary protection, made pursuant to Council Directive
2004/83/EC, be accorded an oral hearing of that application, including
the right to call or cross-examine witnesses, when the application is
made in circumstances where the Member State concerned operates
two separate procedures, one after the other, for examining applications
for refugee status and applications for subsidiary protection
respectively?
In its judgment of February 9, 2017, the Court held as follows:
37 . . . the right to be heard before the adoption of a decision on an

application for subsidiary protection must allow the applicant to set out
his views on all those elements, in order to substantiate his application
and to allow the authorities to carry out the individual assessment of the
facts and circumstances that is provided for in Article 4 of Directive
2004/83 with full knowledge thereof, with a view to determining whether
there would be a real risk of the applicant suffering serious harm, within
the meaning of the directive, if he were returned to his country of origin.
38 That being so, the fact that an applicant for subsidiary protection
has been able to set out his views only in written form cannot,
generally, be regarded as not allowing effective observance of his
right to be heard before a decision on his application is adopted…
46 Furthermore, it should be pointed out that, whilst arrangement of a

fresh interview when the application for subsidiary protection is
examined is capable of providing the applicant with an opportunity to

add new material to that which he has already set out in writing, the
right to be heard does not render it necessary for him to be offered
that chance (see, to that effect, judgment of 5 November 2014,
Mukarubega, C 166/13, EU:C:2014:2336, paragraph 71).
47 That said, the fact remains that, in certain cases, specific

circumstances may make it necessary for an interview to be
arranged in order that the right of the applicant for subsidiary
protection to be heard is effectively observed…
55 … the right to be heard does not imply that an applicant for

subsidiary protection has the right to call or cross-examine
witnesses at any interview in the course of examination of his
application.
56 In the light of all the foregoing considerations, the answer to the

question referred is that the right to be heard, as applicable in the
context of Directive 2004/83, does not require, as a rule, that, where
national legislation, such as that at issue in the main proceedings,
provides for two separate procedures, one after the other, for examining
applications for refugee status and applications for subsidiary protection
respectively, the applicant for subsidiary protection is to have the
right to an interview relating to his application and the right to call
or cross-examine witnesses when that interview takes place.
57 An interview must nonetheless be arranged where specific

circumstances, relating to the elements available to the competent
authority or to the personal or general circumstances in which the
application for subsidiary protection has been made, render it
necessary in order to examine that application with full knowledge
of the facts, a matter which is for the referring court to establish.
[Emphasis added.]
In Delvigne (C-650/13, EU:C:2015:648), the Court analysed the Charter in

determining whether a Member State may make provision for a general,
indefinite and automatic ban on exercising civil rights that also applies to the
right of citizens of the Union to vote in elections to the European Parliament.
A French national had previously been convicted of a serious offence by a

judgment that became final and, as an ancillary penalty, had been permanently
deprived of his civic rights. The rule providing for the automatic application of
that ancillary penalty was amended after the applicant in the main proceedings
had been convicted. However, as the new rule did not apply to convictions that
had become final before its entry into force, the applicant in the main
proceedings alleged that he was the victim of unequal treatment and the
national court asked the Court to interpret Articles 39 and 49 of the Charter of
Fundamental Rights of the European Union (‘the Charter of Fundamental
Rights’) in the light of that deprivation of the right to vote.
The Court held that the situation of a Union citizen who is the subject of a
decision to remove him from the electoral roll made by the authorities of a
Member State and entailing the loss of his right to vote in elections to the
European Parliament falls within the scope of EU law.

The 1976 Act concerning the election of Members of the European Parliament
by direct universal suffrage does not define expressly and precisely who is to
be entitled to that right and therefore, as EU law currently stands, the definition
of the persons entitled to exercise that right falls within the competence of the
individual Member States, which are required to legislate in compliance with
EU law. In particular, the Member States are bound, when exercising that
competence, by the obligation to ensure that the election of Members of the
European Parliament is by direct universal suffrage and free and secret.
Therefore, national legislation which makes provision for citizens of the Union
who have been convicted of a criminal offence to be excluded from the right to
vote in elections to the European Parliament must be considered to be
implementing EU law within the meaning of Article 51(1) of the Charter of
Fundamental Rights.
The Court held that a deprivation of the right to vote such as that at represented
a limitation of the exercise of the right to vote guaranteed in Article 39(2) of the
Charter of Fundamental Rights. However, Article 52(1) of the Charter accepts
that limitations may be imposed on the exercise of such rights, as long as the
limitations are provided for by law and respect the essence of those rights and
freedoms and the principle of proportionality. Here, the deprivation of the right
to vote was provided for by law.
The CoJ did not call into question as such the right to vote referred to in
Article 39(2) of the Charter of Fundamental Rights, since it has the effect of
excluding certain persons, under specific conditions and on account of their
conduct, from those entitled to vote in elections to the Parliament. In addition,
such a limitation is proportionate in so far as it takes into account the nature
and gravity of the criminal offence committed and the duration of the penalty
and in so far as national law provides for the possibility of a person who has
been deprived of the right to vote applying for, and obtaining, the lifting of that
measure.
Finally, the Court observed that the rule of retroactive effect of a more lenient
criminal law, set out in the last sentence of Article 49(1) of the Charter of
Fundamental Rights, did not preclude the national legislation at issue, since
that legislation is limited to maintaining the deprivation of the right to vote
resulting, by operation of law, from a criminal conviction only in respect of final
convictions delivered at last instance under the old, less favourable, legislation.
An application of the Charter can be found in the Grand Chamber judgment in

Aranyosi and Căldăraru (Joined cases C-404/15 and C-659/15 PPU
(ECLI:EU:C:2016:198)). The referring court asked, inter alia, whether
Article 1(3) of Council Framework Decision 2002/584/JHA on the European
Arrest Warrant was to be interpreted as meaning that a request for surrender
for the purposes of prosecution was inadmissible where there were strong
indications that detention conditions in the issuing Member State would infringe
the fundamental rights of the person concerned and the fundamental legal
principles as enshrined in Article 6 TEU.
The Court of Justice recognised (at [82]) that, in accordance with para. 191 of
Opinion 2/13, limitations of the principles of mutual recognition and
mutual trust between Member States could be made “in exceptional
circumstances”, notably, in the context of Article 4 of the Charter on the
prohibition of torture and inhuman or degrading treatment or punishment. It said
(at [85]) that such a prohibition was absolute (as decided in Schmidberger (C-

112/00 EU:C:2003:333)) given the close links to respect for human dignity in
Article 1 of the Charter. It said at [88]:
. . . where the judicial authority of the executing Member State is in

possession of evidence of a real risk of inhuman or degrading treatment
of individuals detained in the issuing Member State, having regard to
the standard of protection of fundamental rights guaranteed by EU law
and, in particular, by Article 4 of the Charter (see, to that effect,
judgment in Melloni, C-399/11, EU:C:2013:107, paragraphs 59 and 63,
and Opinion 2/13, EU:C:2014:2454, paragraph 192), that judicial
authority is bound to assess the existence of that risk when it is
called upon to decide on the surrender to the authorities of the
issuing Member State of the individual sought by a European
arrest warrant. The consequence of the execution of such a
warrant must not be that that individual suffers inhuman or
degrading treatment. [Emphasis added.]
6.1 Does the Charter have horizontal direct effect?
Article 51 of the Charter states:
“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.”
While Article 51 CFR references the application of the Charter to EU

institutions, it does not refer to its application to individuals. Yet CJEU
jurisprudence has examined this in a series of cases i.e. whether the Charter
has horizontal effect in a series of cases pertaining to discrimination in various
guises.
In Egenberger (Case C-414/16, EU:C:2018:257) in the context of employment

discrimination contrary to Directive 2000/78/EC, the CJEU examined whether
Article 4 of that Directive could be enforced in a dispute between private parties.
The Court held:
“76 The prohibition of all discrimination on grounds of religion or

belief is mandatory as a general principle of EU law. That prohibition,
which is laid down in Article 21(1) of the Charter, is sufficient in itself to
confer on individuals a right which they may rely on as such in disputes
between them in a field covered by EU law (see, with respect to the
principle of non-discrimination on grounds of age, judgment of 15
January 2014, Association de médiation sociale, C‑176/12,
77 As regards its mandatory effect, Article 21 of the Charter is no

different, in principle, from the various provisions of the founding

Treaties prohibiting discrimination on various grounds, even where the
discrimination derives from contracts between individuals (see, by
analogy, judgment of 8 April 1976, Defrenne, 43/75, EU:C:1976:56,
paragraph 39; of 6 June 2000, Angonese, C‑281/98, EU:C:2000:296,
paragraphs 33 to 36; of 3 October 2000, Ferlini, C‑411/98,
EU:C:2000:530, paragraph 50; and of 11 December 2007, International
Transport Workers’ Federation and Finnish Seamen’s Union, C‑438/05,
EU:C:2007:772, paragraphs 57 to 61).
78 Secondly, it must be pointed out that, like Article 21 of the Charter,

Article 47 of the Charter on the right to effective judicial protection is
sufficient in itself and does not need to be made more specific by
provisions of EU or national law to confer on individuals a right which
they may rely on as such.
79 Consequently, in the situation mentioned in paragraph 75 above,

the national court would be required to ensure within its jurisdiction the
judicial protection for individuals flowing from Articles 21 and 47 of the
Charter, and to guarantee the full effectiveness of those articles by
disapplying if need be any contrary provision of national law.”
This horizontal effect of the Charter is also apparent in respect of Article 31

CFR in case-law pertaining to the right to pay and annual leave.15
As stated by Craig and de Búrca, this jurisprudence is significant as it by-

passes the remedial limits on the horizontal direct effect of directives.16 Thus
seeking to rely on provisions of the Charter alongside directives in cases where
the doctrine of direct effect is invoked may provide a means of circumventing
the limits of that doctrine as currently articulated by the Court.
7. Accession to the ECHR?
7.1 Indirect review of EU Acts pre-ECHR accession
In Bosphorus Hava Yolari Turizm ve Ticaret AS (2006) 42 EHRR 1, the

European Court of Human Rights seemed to except that human rights were
adequate protected in the EU system but indicated that this was not a definitive
view and would be subject to review if there was a change in fundamental rights
protection.
MSS v. Belgium and Greece, Application No. 30696/09, decision of the

European Court of Human Rights of 21 January 2011, concerned an Afghan
national who applied for asylum in Belgium having entered the EU via, Greece,
where he had been fingerprinted. There is an EU Regulation, “the Dublin
Regulation” (Council Regulation 343/2003/EC of 18 February 2003
establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one of the Member
States by a third-country national) which provides that the EU country of first
entry is the State with responsibility to determine an asylum claim. The Dublin
15 See Stadt Wuppertal v. Maria Elisabeth Bauer; Volker Willmeroth v. Martina Broβonn (Cases
C-569-570/16), at [85]-[91].

Regulation permits another State to take responsibility for the asylum
determination. The ECtHR held that Greece had violated the ECHR owing to
the detention conditions in that State. An issue arose as to whether Belgium,
which had returned the individual to Greece, was also in breach of the ECHR.
Belgium sought to argue that it was complying with its obligation under EU law.
The ECtHR determined that Belgium had breached the ECHR, that it had
retained discretion under EU law to assume responsibility for the asylum
application, that Belgium knew or ought to have known that he had no
guarantee that his asylum application would be seriously examined by the
Greek authorities, and that Belgium was not under an international law
obligation to return the individual to Greece. The European Court of Human
Rights determined that the doctrine of equivalent protection did not apply in this
case.
The current system does mean that there are two European Courts applying
human rights standards and this gives rise to potential differences of
interpretation.
In Dhahbi v. Italy (Application No. 17120/09), 8 April 2014, concerned a

Tunisian worker in Italy who had been refused a family allowance. He argued
that he was entitled to the allowance under an association agreement between
the EU and Tunisia. The ECtHR held that there had been a violation of Article
6(1) ECHR (the right to a fair trial) where the Italian court had failed to give
reasons for refusing to submit a preliminary reference17 to the Court of Justice
of the European Union to determine whether he was entitled to the allowance.
The possibility of EU accession to the European Convention on Human Rights
(ECHR) has been discussed since the late 1970s. Such accession would mean
that the EU institutions would answerable to the European Court of Human
Rights (ECtHR) for possible violations of the ECHR.
7.2 CJEU rulings on ECHR accession
The CoJ, in Opinion 2/94 [1996] ECR I 1759, determined that the EC had no
competence to accede to the ECHR. Because of this judgment, accession
could now only be brought about by means of an amendment to the Treaties.
While the Member States are subject to the ECHR, they have not subjected the
EU institutions to the possibility of review by the ECtHR. The Lisbon Treaty
includes a legal basis for accession of the EU to the ECHR. Indeed, the
provision mandates accession. Article 6(2) TEU, as amended by the Lisbon
Treaty provides:
The Union shall accede to the European Convention for the Protection
of Human Rights and Fundamental Freedoms. Such accession shall
not affect the Union's competences as defined in the Treaties.
[Emphasis added.]
There is both a Protocol (No. 8) and Declaration (No. 2) concerning Article 6(2)
TEU on EU Accession to the ECHR. The result of accession would be that the
EU could be brought before the European Court of Human Rights to answer
accusations of a breach of the ECHR. On the Council of Europe side, EU
accession is provided for by Article 59(2) of the ECHR as amended by Protocol
No. 14. Negotiations on the legal instrument necessary for EU accession
began in June 2010. A draft legal instrument was published in July 2011. It
17 Preliminary references are discussed in the next chapter.

provides, inter alia, for a co-respondent mechanism where both the EU and a
Member State can be respondents to an action and that there will be an EU
judge at the European Court of Human Rights. Accession of the EU to the
ECHR has not yet taken place. The EU will accede to the ECHR when the
Accession Agreement enters into force, following ratification by all States party
to the ECHR and by the EU. Accession of the EU to the ECHR is not without
difficulties. For example, it is unclear how the exhaustion of domestic remedies
rule applied by the ECtHR will operate in cases taken against the EU or in cases
where the EU is a co-respondent. A draft accession agreement was finalised
in April 2013. The European Commission submitted a request for an Opinion
on the Draft Agreement on the Acession of the EU to the ECHR to the Court of
Justice pursuant to Article 218(11) TFEUasking whether the draft agreement is
compatible with the Treaties.
In Opinion 2/13 ECLI:EU:C:2014:2454, Judgment of 18 December 2014, the

CoJ determined that the agreement on the accession of the European Union
to the European Convention for the Protection of Human Rights and
Fundamental Freedoms was not compatible with Article 6(2) TEU, or with
Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the
accession of the Union to the European Convention on the Protection of Human
Rights and Fundamental Freedoms. The CoJ held that the draft agreement:
...is not compatible with Article 6(2) TEU or with Protocol No 8 EU in that:
- it is liable adversely to affect the specific characteristics and the

autonomy of EU law in so far it does not ensure coordination between
Article 53 of the ECHR and Article 53 of the Charter, does not avert the
risk that the principle of Member States’ mutual trust under EU law may
be undermined, and makes no provision in respect of the relationship
between the mechanism established by Protocol No 16 and the
preliminary ruling procedure provided for in Article 267 TFEU;
- it is liable to affect Article 344 TFEU in so far as it does not preclude the
possibility of disputes between Member States or between Member
States and the EU concerning the application of the ECHR within the
scope ratione materiae of EU law being brought before the ECtHR;
- it does not lay down arrangements for the operation of the co-
respondent mechanism and the procedure for the prior involvement of
the Court of Justice that enable the specific characteristics of the EU
and EU law to be preserved; and
- it fails to have regard to the specific characteristics of EU law with regard

to the judicial review of acts, actions or omissions on the part of the EU
in CFSP matters in that it entrusts the judicial review of some of those
acts, actions or omissions exclusively to a non-EU body.
An issue had also arisen as to whether EU acts were subject to review by the
Council of Europe machinery including the European Court of Human Rights
(ECtHR). This issue arose because all twenty-seven Member States are party
to the ECHR and subject to review by the ECtHR. Council of Europe Member
States are bound to comply with the ECHR but owing to the transfer of
powers/competences the Member States no longer exercise competences in
certain areas. Would the Member States find themselves accountable for
breaches of the ECHR by the political institutions of the EU?

Craig and de Búrca note that the general reaction to Opinion 2/13 has been
critical, and that while it is unlikely that plans for accession will be shelved, it is
difficult to predict what the path forward will be.18
8. Rule of Law
In Les Verts v. Parliament (Case 294/83; [1986] ECR 1339) the CJEU stated
that:
“It must first be emphasized in this regard that the [EEC] is a

Community based on the rule of law, inasmuch as neither its Member
States nor its institutions can avoid a review of the question whether the
measures adopted by them are in conformity with the basic
constitutional charter, the Treaty.”
The concept is now enshrined at Article 2 TEU, as set out above, and Article
49 TEU makes respect for the rule of law an essential prerequisite for countries
seeking to apply for EU membership. Finally, Article 7 TEU outlines a formal
procedure for breaches of Article 2 TEU by Member States.
There have been well publicised problems with rule of law in some EU Member
States in recent years, largely concentrated on the undermining of judicial
independence in both Poland and Hungary, thereby posing serious risks to the
effectiveness of EU law, respect for mutual trust and the integrity of the
preliminary reference procedure at Article 267 TFEU.
In order to avoid automatic recourse to Article 7 TEU, which is lengthy and

requires unanimity in the European Council, the European Commission
introduced a series of mechanisms to encourage compliance with the rule of
law, such as the Commission Justice Scorecard which contained financial
incentives connected to the European Semester, a Rule of Law Framework19,
and later a Rule of Law Review Cycle, while the Council adopted a Rule of Law
Annual Dialogue.20
Nevertheless, in Commission v. Poland (C-619/18 and C-192/18,

EU:C:2019:531) the European Commission issued infringement proceedings
against Poland in respect of a New Law on the Supreme Court and the
subsequent Laws amending that Law, on the basis that in changing the terms
and retirement age of Supreme Court judges Poland had failed to fulfil its
obligations under Article 19(1) TEU and Article 47 of the Charter.
The CJEU held that by providing that the measure consisting in lowering the
retirement age of the judges of the Supreme Court is to apply to judges in post
who were appointed to that court before 3 April 2018 and, secondly, by granting
the President of the Republic the discretion to extend the period of judicial
activity of judges of that court beyond the newly fixed retirement age, Poland
had failed to fulfil its obligations under the second subparagraph of Article 19(1)
TEU. The Court reasoned as follows:
18 Craig and de Búrca, 7th ed., at pp.456-457.

19 COM (2014) 158 final.
20 Craig and de Búrca, p. 49.

47 … Article 19 TEU, which gives concrete expression to the value of
the rule of law affirmed in Article 2 TEU, entrusts the responsibility
for ensuring the full application of EU law in all Member States and
judicial protection of the rights of individuals under that law to
national courts and tribunals and to the Court of Justice (see, to
that effect, judgments of 27 February 2018, Associação Sindical
dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 32,
and of 25 July 2018, Minister for Justice and Equality
(Deficiencies in the system of justice), C-216/18 PPU,
48 In that regard, as provided for by the second subparagraph of

Article 19(1) TEU, Member States are to provide remedies
sufficient to ensure effective judicial protection for individuals in
the fields covered by EU law. It is, therefore, for the Member
States to establish a system of legal remedies and procedures
ensuring effective judicial review in those fields (judgment of
27 February 2018, Associação Sindical dos Juízes Portugueses,
49 The principle of the effective judicial protection of individuals’

rights under EU law, referred to in the second subparagraph of
Article 19(1) TEU, is a general principle of EU law stemming from
the constitutional traditions common to the Member States, which
has been enshrined in Articles 6 and 13 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950, and which is
now reaffirmed by Article 47 of the Charter (judgment of
27 February 2018, Associação Sindical dos Juízes Portugueses,
50 As regards the material scope of the second subparagraph of

Article 19(1) TEU, that provision moreover refers to ‘the fields
covered by Union law’, irrespective of whether the Member States
are implementing Union law within the meaning of Article 51(1) of
the Charter (judgment of 27 February 2018, Associação Sindical
dos Juízes Portugueses, C-64/16, EU:C:2018:117,
paragraph 29)…
52 Furthermore, although, as the Republic of Poland and Hungary

point out, the organisation of justice in the Member States falls
within the competence of those Member States, the fact remains
that, when exercising that competence, the Member States are
required to comply with their obligations deriving from EU law
(see, by analogy, judgments of 13 November 2018, Raugevicius,
C-247/17, EU:C:2018:898, paragraph 45, and of 26 February
2019, Rimšēvičs and ECB v Latvia, C-202/18 and C-238/18,
EU:C:2019:139, paragraph 57) and, in particular, from the second
subparagraph of Article 19(1) TEU (see, to that effect, judgment
of 27 February 2018, Associação Sindical dos Juízes
Portugueses, C-64/16, EU:C:2018:117, paragraph 40). Moreover,
by requiring the Member States thus to comply with those
obligations, the European Union is not in any way claiming to
exercise that competence itself nor is it, therefore, contrary to what

is alleged by the Republic of Poland, arrogating that
competence…
57 To ensure that a body such as the Sąd Najwyższy (Supreme

Court) is in a position to offer such protection, maintaining its
independence is essential, as confirmed by the second paragraph
of Article 47 of the Charter…
58 That requirement that courts be independent, which is inherent in

the task of adjudication, forms part of the essence of the right to
effective judicial protection and the fundamental right to a fair trial,
which is of cardinal importance as a guarantee that all the rights
which individuals derive from EU law will be protected and that the
values common to the Member States set out in Article 2 TEU, in
particular the value of the rule of law, will be safeguarded…
77 … the requirement of independence means that the rules

governing the disciplinary regime and, accordingly, any dismissal
of those who have the task of adjudicating in a dispute must
provide the necessary guarantees in order to prevent any risk of
that disciplinary regime being used as a system of political control
of the content of judicial decisions…
In A.K. and Others v Sąd Najwyższy, (Cases C-585/18, C-624/18, C-625/18;

EU:C:2019:982), a subsequent reference for a preliminary ruling emanating
from the Polish Supreme Court, three judges who reached the age of 65 before
the entry into force of the New Law on the Supreme Court, had sought to
continue in their positions and claimed that retiring them at the age of 65
contravened the second subparagraph of Article 19(1) TEU, Article 47 of the
Charter and Article 9(1) Directive 2000/78 EC.
Despite the fact that, following a recent amendment, that law no longer
concerned judges who, like the applicants, were already serving members of
the Supreme Court when that law entered into force and that those applicants
were kept in their posts or reinstated, the referring court considered that it was
still faced with a problem of a procedural nature as although such cases would
ordinarily fall within the jurisdiction of the Disciplinary Chamber - a newly
created within the Supreme Court - the referring court asked whether, on
account of concerns relating to the independence of that chamber, it was
required to disapply national rules on the distribution of jurisdiction and, if
necessary, rule itself on the substance of those cases.
The following passage of the Grand Chamber’s reasoning is noteworthy:
121 According to settled case-law, the requirement that courts be

independent has two aspects to it. The first aspect, which is
external in nature, requires that the court concerned exercise its
functions wholly autonomously, without being subject to any
hierarchical constraint or subordinated to any other body and
without taking orders or instructions from any source whatsoever,
thus being protected against external interventions or pressure
liable to impair the independent judgment of its members and to
influence their decisions (judgments of 25 July 2018, Minister for
Justice and Equality (Deficiencies in the system of justice),

C-216/18 PPU, EU:C:2018:586, paragraph 63 and the case-law
cited, and of 24 June 2019, Commission v Poland (Independence
of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 72).
122 The second aspect, which is internal in nature, is linked to

impartiality and seeks to ensure that an equal distance is
maintained from the parties to the proceedings and their
respective interests with regard to the subject matter of those
proceedings. That aspect requires objectivity and the absence of
any interest in the outcome of the proceedings apart from the strict
application of the rule of law (judgments of 25 July 2018, Minister
for Justice and Equality (Deficiencies in the system of justice),
C-216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law
cited, and of 24 June 2019, Commission v Poland (Independence
of the Supreme Court), C-619/18, EU:C:2019:531, paragraph 73).
123 Those guarantees of independence and impartiality require rules,

particularly as regards the composition of the body and the
appointment, length of service and grounds for abstention,
rejection and dismissal of its members, in order to dispel any
reasonable doubt in the minds of individuals as to the
imperviousness of that body to external factors and its neutrality
with respect to the interests before it (judgments of 25 July
2018, Minister for Justice and Equality (Deficiencies in the system
of justice), C-216/18 PPU, EU:C:2018:586, paragraph 66 and the
case-law cited, and of 24 June 2019, Commission v Poland
(Independence of the Supreme Court), C-619/18, EU:C:2019:531,
paragraph 74).
124 Moreover, in accordance with the principle of the separation of

powers which characterises the operation of the rule of law, the
independence of the judiciary must be ensured in relation to the
legislature and the executive (see, to that effect, judgment of
10 November 2016, Poltorak, C-452/16 PPU, EU:C:2016:858,
paragraph 35).
125 In that regard, it is necessary that judges are protected from

external intervention or pressure liable to jeopardise their
independence. The rules set out in paragraph 123 above must, in
particular, be such as to preclude not only any direct influence, in
the form of instructions, but also types of influence which are more
indirect and which are liable to have an effect on the decisions of
the judges concerned (see, to that effect, judgment of 24 June
2019, Commission v Poland (Independence of the Supreme
Court), C-619/18, EU:C:2019:531, paragraph 112 and the case-
law cited).
126 That interpretation of Article 47 of the Charter is borne out by the

case-law of the European Court of Human Rights on Article 6(1)
of the ECHR according to which that provision requires that the
courts be independent of the parties and of the executive and
legislature (ECtHR, 18 May 1999, Ninn-Hansen v. Denmark,
CE:ECHR:1999:0518DEC002897295, p. 19 and the case-law
cited).

127 According to settled case-law of that court, in order to establish
whether a tribunal is ‘independent’ within the meaning of
Article 6(1) of the ECHR, regard must be had, inter alia, to the
mode of appointment of its members and their term of office, the
existence of guarantees against outside pressures and the
question whether the body at issue presents an appearance of
independence (ECtHR, 6 November 2018, Ramos Nunes de
Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113,
§ 144 and the case-law cited), it being added, in that connection,
that what is at stake is the confidence which such tribunals must
inspire in the public in a democratic society (see, to that effect,
ECtHR, 21 June 2011, Fruni v. Slovakia,
CE:ECHR:2011:0621JUD000801407, § 141).
128 As regards the condition of ‘impartiality’, within the meaning of

Article 6(1) of the ECHR, impartiality can, according to equally
settled case-law of the European Court of Human Rights, be
tested in various ways, namely, according to a subjective test
where regard must be had to the personal convictions and
behaviour of a particular judge, that is, by examining whether the
judge gave any indication of personal prejudice or bias in a given
case; and also according to an objective test, that is to say by
ascertaining whether the tribunal itself and, among other aspects,
its composition, offered sufficient guarantees to exclude any
legitimate doubt in respect of its impartiality. As to the objective
test, it must be determined whether, quite apart from the judge’s
conduct, there are ascertainable facts which may raise doubts as
to his or her impartiality. In this connection, even appearances
may be of a certain importance. Once again, what is at stake is
the confidence which the courts in a democratic society must
inspire in the public, and first and foremost in the parties to the
proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and
Others v. Netherlands, CE:ECHR:2003:0506JUD003934398,
§ 191 and the case-law cited, and 6 November 2018, Ramos
Nunes de Carvalho e Sá v. Portugal,
CE:ECHR:2018:1106JUD005539113…”
The Court ultimately held that the right to an effective remedy, enshrined in
Article 47 of the Charter and reaffirmed by Directive 2000/78 EC, precludes
cases concerning the application of EU law from falling within the exclusive
jurisdiction of a court which is not an independent and impartial tribunal.
In Commission v. Poland (C-791/19 R, EU:C:2020:277), the CJEU ordered

Poland to immediately suspend the application of national provisions forming
the basis of the jurisdiction of the Disciplinary Chamber of the Polish Supreme
Court to rule in disciplinary cases relating to judges and to refrain from referring
the cases pending before the Disciplinary Chamber to a formation that does
not satisfy the requirements of independence defined in, among other cases,
A.K.
An application for interim relief was brought in the action for failure to fulfil
obligations brought by the European Commission in October 2019, seeking a
declaration that Poland, by adopting the new disciplinary regime for the judges
of the Supreme Court and the ordinary courts, had failed to fulfil its obligations

under the combined provisions of the second subparagraph of Article 19(1)
TEU and the second and third paragraphs of Article 267 TFEU.
The Court of Justice emphasised that it is for every Member State to ensure
that the disciplinary rules applicable to the judges of national courts within their
system of legal remedies in the fields covered by EU law respect the principle
of judicial independence. Thus, it is necessary to safeguard the fact that
decisions given in disciplinary proceedings brought against the judges of those
courts are reviewed by a body which itself satisfies the guarantees inherent in
effective judicial protection, including that of independence.
Court noted that the grant of those measures would not entail the dissolution
of the Disciplinary Chamber, but only the provisional suspension of its activity
until final judgment had been delivered.
It is likely that a resolution to such matters will require a multi-faceted approach

by the EU institutions, involving both carrot and stick, namely a mixture of
financial incentives but also persistent enforcement of breaches of EU law.
Given the political sensitivity of such measures and the potential to further
erode solidarity amongst EU27 in the process, the Commission, as guardian of
the Treaties, will have to tread extremely carefully in conducting this delicate
balancing exercise.
o Wyatt and Dashwood, “European Union Law” (6th ed., Hart Publishing,
2011), chapters 11 and 12;
o Costello, “The Bosphorus Ruling of the European Court of Human
Rights: Fundamental Rights and Blurred Boundaries in Europe”, Human
Rights Law Review [2006] 6:1, 87, 100;
o Kingston, “Human Rights and the European Union- An Evolving
System” Lucey and Keville, (eds.) Irish Perspectives on EC Law
(Roundhall, 2003), 271;
o Moriarty, “Human Rights in the EU” in Moriarty and Massa (eds.)
Human Rights Law ( 4th ed, Oxford University Press/Law Society of
Ireland, 2012), chapter 8
o Alston (ed), The EU and Human Rights (OUP, 1999);
o Foster on EU Law (7th ed., Oxford University Press, 2019); chapter 4.

224 © The Honorable Society of King’s Inns 2021–2022
Chapter 8
Preliminary References
1. Required Reading
o Article 267 TFEU;
o Court of Justice recommendations to national courts and tribunals in
relation to the initiation of preliminary ruling proceedings (2018/C 257/01)
Cambridge University Press, 2014)
University Press, 2014), chapter 9.
2. Introduction
We saw in Chapter 2, that References for Preliminary Rulings comprise one of the
two main types of actions heard by the Court of Justice of the European Union.
We also saw in that currently all preliminary references are heard by the Court of
Justice. The TFEU provides for the possibility of preliminary references being
heard by the General Court, but this is dependent on an amendment to the Statute
of the Court of Justice (Protocol No. 3) and the Statute has not yet been amended.
Article 267 TFEU1 provides the mechanism whereby national courts and tribunals
seek guidance from the Court of Justice about the interpretation of EU law and
how it is to be enforced in the domestic legal orders of the Member States.
Article 267 TFEU references account for a large portion of the work of the Court of
Justice. Many of the most significant developments of EU law have resulted from
Article 267 TFEU references. These include the decisions in Costa v. ENEL [1964]
ECR 565 (Case 6/64), Van Gend en Loos [1963] ECR 1 (Case 26/62) and
Francovich and Bonifaci v. Italy [1991] I ECR 5357 (Joined Cases C-6/90 and
C-9/90). Litigants do not have the possibility of initiating Article 267 TFEU actions
directly before the Court of Justice.
Much responsibility for the application of European law rests with the domestic
courts of the Member States. This gives rise to the question of how to ensure that
European law has the same effect in each of the Member States. To help ensure
the uniform application of European Law the TFEU provides a mechanism which
enables national courts to refer questions of EU law to the Court of Justice which
the national courts must decide before giving judgment.
1 The preliminary reference mechanism was originally found in Article 177 of the EEC Treaty and
later in Article 234 EC.
© The Honorable Society of King’s Inns 2021–2022 225

Fahey2 noted that there were only 53 preliminary references by Irish courts
between 1973 and 2010. This was statistically low by reference to other small-
sized EU Member States. Between 2010 and 2012, there was a marked increase
in the number of references from the Irish Courts. For example in 2011, eleven
references were made from Irish courts.3 In the past five years alone, the CJEU
delivered rulings in 41 Irish references, including four urgent preliminary rulings.
3. Text of Article 267 TFEU

The Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings concerning
(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices
or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member

State, that court or tribunal may, if it considers that a decision on the
question is necessary to enable it to give judgment, request the Court of
Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or

tribunal of a Member State against whose decisions there is no judicial
remedy under national law, that court or tribunal shall bring the matter
before the Court.
If such a question is raised in a case pending before a court or tribunal of

a Member State with regard to a person in custody, the Court of Justice of
the European Union shall act with the minimum of delay.
There are four key aspects to the Treaty article. The first paragraph sets out the
jurisdiction of the Court of Justice to give preliminary rulings. The second
paragraph affords discretion to any national court or tribunal to refer a question.
This discretion has been limited by the Court of Justice in one respect, which will
be discussed below. The third paragraph mandates national courts or tribunals
from which there is no national remedy to refer questions of European law to the
Court of Justice. There are exceptions to this mandatory rule. The fourth
paragraph added by the Treaty of Lisbon requires the Court of Justice to act with
a minimum of delay when a question is raised in a case with regard to a person in
custody.
2Fahey, EU Law in Ireland (Clarus Press, 2010), chapter 6.

3These references are discussed in Donnelly, “EU Law in the National Courts”, EU Litigation
Update Conference, Paper, Irish Centre of European Law, May 10, 2012.

4 The Preliminary-Ruling Procedure
References for preliminary rulings represent a stage in proceedings which have
begun, and which will finish in a domestic court of one of the Member States.
Where a national judge encounters an issue of European Union law requiring
resolution before judgment can be given, the Treaty Article 267 TFEU provides for
a question to be referred to the Court of Justice of the European Union in what is
known as a preliminary ruling. It is for the domestic court to apply the ruling to the
facts of the case. Preliminary references allow national courts to ask questions of
the Court of Justice. The action commences in national court and proceedings in
national court are stayed pending a response from the Court of Justice. It is for
the national court to apply the ruling on the law to the facts and to resolve the
dispute between the parties. The Court of Justice has an interpretative role, but it
has no jurisdiction to give rulings on national law. The preliminary reference
procedure is often described as a dialogue between national courts and the Court
of Justice. It is not an appellate system and litigants cannot appeal decisions
of national courts to the Court of Justice. Furthermore, it is for the national
court to make the decision to refer. While litigants can make submissions to
national courts or tribunals as to whether a reference is necessary, it is ultimately
a decision for the national court whether to refer a question to the Court of Justice.
In Kelly v. National University of Ireland [2008] IEHC 464, where it was submitted
that the High Court in that instance was a court of last instance with an obligation
to refer, the High Court (McKechnie J) stated (at [15]) “... no party to an action has
the right to insist upon a reference being made or to asset a right of veto against
the making of such a reference.”
5. The Jurisdiction of the Court of Justice

The basic jurisdiction of the Court of Justice to give preliminary rulings is set out
on the text of Article 267, at paragraph 1. The jurisdiction has also been subject
to judicial interpretation by the Court of Justice.
5.1 TEU and TFEU
Pursuant to Article 267 TFEU, the Court of Justice has jurisdiction to give rulings
on the interpretation of the Treaties, i.e. the Treaty on European Union and the
Treaty on the Functioning of the European Union. It is clear from the text of Article
267 TFEU that the Court of Justice does not have jurisdiction to give rulings on the
validity of the Treaties.
5.2 EU Acts
The Court of Justice has jurisdiction to give rulings on the validity and interpretation
of the acts of the institutions, bodies, offices or agencies of the Union. This
jurisdiction to rule on the validity and interpretation of “acts” of the EU clearly
covered regulations, directives and decisions but it has also been extended by the
Court to non-binding acts recommendations and opinions (Grimaldi [1989] ECR
4407 (Case C-322/88)).

5.3 International agreements
The Court of Justice has jurisdiction to give preliminary rulings in respect of

international agreements entered into by the European Union under powers given
in the Treaties. Examples include Haegeman v. Belgium [1974] ECR 449 (Case
181/73) with regard to the Association Agreement between the European
Community and Greece, Demirel [1987] ECR 3719 (Case 12/86) with regard to the
Association agreement between the European Community and Turkey and
Amministrazione delle finanze dello Stato v. SPI and SAMI [1983] ECR 801 (Case
267-9/81) with regard to GATT.
The Court of Justice also has jurisdiction in respect of mixed agreements. An

example is Hermes [1998] ECR I 3603 (Case 53/96) with regard to Article 50 of
the Agreement on Trade Related Aspects of Intellectual Property Rights where the
WTO Agreement was concluded by the European Community and ratified by the
Member States without any allocation between them of their respective obligations
towards the other contracting parties.
However, the CoJ does not have jurisdiction to answer an Article 267 TFEU
reference based on an international agreement concluded solely by the Member
States. An example is Hurd v. Jones [1986] ECR 29 (Case 44/84) with regard to
the Statute of the European Schools.
5.4 National laws
The CoJ has no jurisdiction to answer an Article 267 TFEU reference with regard
to national legislation lying outside the scope of Union law. In Kremzow v. Austria
[1997] ECR I 2629 (Case C-299/95), the Court of Justice held that the subject
matter fell outside the scope of EC law and that the Court did not have jurisdiction
to give a ruling pursuant to Article 267 TFEU. Mr Kremzow had been a Judge in
Austria. He was convicted of murder and sentenced to serve a term of
incarceration in a mental health facility. On appeal, he was sentenced to serve his
sentence in an ordinary prison. He was not present at appeal and the European
Court of Human Rights had found that this was a breach of his ECHR rights.
A question was referred to the Court of Justice as to whether all or at least the
substantive-law provisions of the ECHR, including Articles 5, 6 and 53 ECHR
which were relevant to the proceedings before the Oberster Gerichtshof were part
of EU law (Article 19(1) TEU), with the result that the Court of Justice might give a
preliminary ruling on their interpretation pursuant to Article 267(1). The Court of
Justice reasoned:
16 The appellant in the main proceedings is an Austrian national whose

situation is not connected in any way with any of the situations
contemplated by the Treaty provisions on freedom of movement for
persons. Whilst any deprivation of liberty may impede the person
concerned from exercising his right to free movement, the Court has held
that a purely hypothetical prospect of exercising that right does not
establish a sufficient connection with Community law to justify the
application of Community provisions (see in particular to this effect Moser
[1984] ECR 2539 (Case 180/83), paragraph 18).

17 Moreover, Mr Kremzow was sentenced for murder and for illegal
possession of a firearm under provisions of national law which were not
designed to secure compliance with rules of Community law (see, in
particular, Maurin [1996] ECR I-2909 (Case C-144/95), paragraph 12).
The Court of Justice stated that Mr Kremzow’s situation had no connection with
EU (then Community) Law. The situation in the main proceedings did not fall within
the application of EU law. Therefore, the Court of Justice had no jurisdiction to
give a preliminary ruling.
Exceptionally, where Member States have chosen to align their domestic law to
EU law so as to apply the same treatment to purely internal situations as that
accorded to situations governed by EU law, the Court of Justice has jurisdiction to
give a ruling pursuant to Article 267 TFEU. In Dzodzi v. Belgium [1990] ECR I 3763
(Joined Cases C297/88 and C-197/89), Mrs Dzodzi was a third country national
and the widow of a Belgian national. Belgian law provided that, in order to avoid
reverse discrimination, the foreign spouse of a Belgian national was to be treated
as if she was the spouse of a Community national. EU law did not require Belgium
to apply Community law to its own nationals. A dispute arose concerning Mrs
Dzodzi’s right to reside in Belgium. Belgium had chosen to apply EU legislation
concerning a right to remain in a host State for EU workers and their third country
national members to the family members of Belgian workers. The Court of Justice
considered it had jurisdiction to interpret Community provisions applicable
internally within Belgium by virtue of national law. In other words, although
Belgium was not required to apply the EU law to situations involving its own
nationals, once it chose to apply the EU law in that way the Court of Justice had
jurisdiction to interpret the EU law even in this situation. The rationale for the
decision is that otherwise the effectiveness and uniformity of EU law would be
damaged if a national court would be free to interpret an EU law differently in an
internal situation.4
In Miasto Łowicz and Prokurator Generalny (Joined Cases C-558/18 and C-

563/18), the CJEU declared two requests for a preliminary ruling made by Regional
Court, Łódz and Warsaw, Poland to be inadmissible. The referring courts asked
the CJEU whether the new Polish legislation relating to the disciplinary regime for
judges was compatible with the right of individuals to effective judicial protection
under the second paragraph of Article 19(1) TEU paragraph 2.
The order for reference referred to recent legislative reforms that had taken place
in Poland, which, in the view of the referring courts, called into question the
4 See also Ullens de Schooten (C-268/15, EU:C:2016:874) (November 15, 2016), in which the
Grand Chamber of the Court ruled on the possibility of pleading the non-contractual liability of a
Member State for damage caused to individuals by breaches of the fundamental freedoms laid
down in Articles 49, 56, and 63 TFEU in a situation which is confined in all respects within a single
Member State. The Court pointed out that it is for the referring court to indicate to the Court, in its
order for reference, in accordance with the requirements of Article 94 of the Rules of Procedure of
the Court, in what way the dispute pending before it, despite its purely domestic character, has a
connecting factor with the provisions of EU law on the fundamental freedoms that makes the
preliminary ruling on interpretation necessary for it to give judgment in that dispute.

objectivity and impartiality of disciplinary proceedings relating to judges and had
an impact on the independence of the Polish courts. Highlighting in particular the
considerable influence which the Minister for Justice has in disciplinary
proceedings relating to the judges of the ordinary courts, the referring courts
pointed to the lack of adequate safeguards accompanying that influence.
The Court of Justice held that the disputes were not connected with Union law and
referring courts were not called upon to apply that law in order to rule on the
substance of those disputes. Furthermore, it was not apparent from the orders for
reference that there was a connecting factor between the provision of EU law to
which the questions referred related and the disputes in the main proceedings,
which made it necessary to have the interpretation sought to deliver judgment.
Finally, the Court held that the questions referred were general in nature.
The Court also commented that provisions of national law which expose national
judges to disciplinary proceedings as a result of the fact that they submitted a
reference to the Court for a preliminary ruling cannot be permitted and would be
likely to undermine the effective exercise by the national judges concerned of the
discretion to refer questions to the Court and of the functions of the court
responsible for the application of EU law entrusted to them by the Treaties.
5.5 Hypothetical cases
The Court of Justice will decline jurisdiction in the absence of a genuine dispute or
where the questions asked are hypothetical; Foglia v. Novello (No. 2) [1981] 3045
(Case 244/80). Mrs Novello bought wines from Foglia and shipped them to France
from Italy. The contract provided for the exclusion of customs duties unlawfully
levied.
In Foglia v. Novello (No.1) [1980] ECR 745 (Case 104/79), the Court of Justice
considered:
11. The duty of the [CoJ under Art 267] is to supply all courts in the
Community with the information on the interpretation of Community law
which is necessary to enable them to settle genuine disputes which are
brought before them. A situation in which the Court was obliged by the
expedient of arrangements like those described above to give rulings
would jeopardise the whole system of legal remedies available to
private individuals to enable them to protect themselves against tax
provisions which are contrary to the Treaty.
13. The [Court of Justice] accordingly does not have jurisdiction to give a
ruling on the questions asked by the national court. [Emphasis added.]
In a second series of questions arising from same set of facts referred in Foglia v.
Novello (No.2) the Italian court asked whether the judgment in Foglia (No.1) was
consistent with the idea of a division of responsibilities between the national courts
and the Court of Justice, whereby it is the role of the national court to determine
whereby it is the role of the of the national court to determine the facts and the
need for the reference

18. In fact it must be emphasised that the duty assigned to the court by
article [267 TFEU] is not that of delivering advisory opinions on general
or hypothetical questions but of assisting in the administration of
justice in the member states. It accordingly does not have jurisdiction to
reply to questions of interpretation which are submitted to it within the
framework of procedural devices arranged by the parties in order to induce
the court to give its views on certain problems of community law which do
not correspond to an objective requirement inherent in the resolution of a
dispute. A declaration by the court that it has no jurisdiction in such
circumstances does not in any way trespass upon the prerogatives of the
national court but makes it possible to prevent the application of the
procedure under [267 TFEU] for purposes other than those appropriate for
it.
19…the [CoJ]… must be in a position to make any assessment inherent in

its own duties in particular in order to check as all courts must whether it
has jurisdiction. [Emphasis added.]
Another recent examination by the Court of Justice of the admissibility of

hypothetical preliminary references can be found in Wightman & Ors. C-621/18,
EU:C:2018:999, a rare plenary hearing of the Court on foot of a Scottish
preliminary reference as to whether EU law permits the unilateral revocation by a
Member State of a notification of intention to withdraw from the EU under Article
50 TEU.
The referring court sought to determine whether and how the notification referred
to in Article 50 TEU could be revoked before expiry of the two-year period provided
for in Article 50(3) TEU of that provision, with the effect that such revocation would
result in the United Kingdom remaining in the European Union.
The UK Government and the Commission’s argued that the case was inadmissible
as it was hypothetical and as no draft act of revocation of the notification of the
United Kingdom’s intention to withdraw from the European Union had been
adopted or even contemplated, that there was no dispute and the question referred
actually intended to obtain an advisory opinion on a constitutional issue, namely
the correct interpretation of Article 50 TEU (para. 20). The UK submitted that there
was no concrete dispute, since the question referred addressed events that had
not occurred and may not occur (para. 21).
The Commission also argued that the ruling that the referring court would deliver
after receiving the Court’s answer to the question referred would not produce any
binding effects on the parties to the main proceedings and the question was
therefore hypothetical.
The Court nevertheless pointed out that the question of interpretation referred to it
by the national court was relevant and not hypothetical, given that it was precisely
the point at issue in the case pending before that court.
28 It should also be borne in mind that, in accordance with settled case-

law, the justification for a reference for a preliminary ruling is not that it
enables advisory opinions on general or hypothetical questions to be

delivered but rather that it is necessary for the effective resolution of
a dispute…
31 In addition, the fact that the action in the main proceedings seeks a
declaratory remedy does not prevent the Court from ruling on a
question referred for a preliminary ruling, provided that the action is
permitted under national law and that the question meets an objective
need for the purpose of settling the dispute properly brought before
the referring court …
32 Accordingly, there is indeed a dispute before the referring court,

even though the respondent in the main proceedings chose not to
address the substance of the issue raised by the petitioners in the main
proceedings, maintaining only that the petitioners’ action was inadmissible
(see, to that effect, judgment of 8 July 2010, Afton Chemical, C‑343/09,
EU:C:2010:419, paragraphs 11 and 15).
33 There is no doubt as to the relevance of the question referred,

since it concerns the interpretation of a provision of EU law — primary
law, in this case — and that question is precisely the point at issue in
the dispute in the main proceedings.
5.6 The matter must be “pending” before a national court or tribunal
The Court of Justice will only give rulings in respect of matters which are “pending”
before national courts or tribunals. In Fratelli Pardini SpA v. Ministero del
Commercio con l’Estero [1988] ECR 2041 (Case 338/85), the Court of Justice
considered that it could not give a ruling on a question raised in a national court
where the procedure before the national court had already been terminated. See
also the decision in McNamara v. An Bord Pleanala [1998] ILRM 313, discussed
below.
5.7 Preliminary Rulings are Binding
The Court of Justice makes a ruling on European law and transmits it back to the
national court. The ruling binds the national court. It is for the national court to
apply the ruling to the factual dispute before it. However, sometimes the ruling of
the Court of Justice is so detailed as to allow little room for application by the
national court. In International Chemical Corporation v. Amministrazione Finanze
[1981] ECR 1191 (Case 66/80), the Court of Justice held that a judgment declaring
an EC measure illegal bound all courts and authorities in the EC.
6. Court or Tribunal
6.1 Whether a body is “a court or tribunal” for the purposes of Article 267
TFEU is a matter of EU Law
Whether a body is a court or tribunal is a question of EU law and not of national

law. In Vassen-Gobbels v. Beamtenfonds Mijnbedriff [1966] ECR 261 (Case 61/65)

a reference was made from a Dutch social security tribunal which gave non-binding
opinions and was not considered a court or tribunal under Dutch law. The Court
of Justice held it was a “court or tribunal” as the members had to be appointed by
a Minister, the Minister stipulated the procedures of the tribunal, the tribunal was
bound to apply the law, was adversarial and it was permanent in nature.
6.2 Factors which the Court will take into account in determining whether
a body is “a court or tribunal” for the purposes of Article 267 TFEU
Article 267 TFEU does not define a court or tribunal. The case-law of the Court of
Justice is of assistance in determining whether a body is a court or tribunal for the
purposes of Article 267 TFEU. It can be summarised in a series of questions as
follows:
• Is the body established by law?

• Is the body permanent?
• Is the body independent?
• Does the body apply the rule of law?
• Is the body’s jurisdiction compulsory?
• Is the body’s procedure inter partes?
These questions emanate from a number of Court of Justice judgments.5 In Dorsch
Consult v. Bundesbaugesellschaft Berlin [1997] ECR I 4961 (Case C-54/96) the
Court of Justice stated (at [23]):
In order to determine whether a body making a reference is a court or

tribunal …the Court takes account of a number of factors, such as
whether the body is established by law, whether it is permanent, whether
its jurisdiction is compulsory, whether its procedure is inter partes,
whether it applies rules of law and whether it is independent … [Emphasis
added.]
Dorsch Consult concerned a dispute regarding the awarding of a public service

contract. Dorsch Consult tendered for contract and was informed that it was not
successful by the awarding authority, prior to a formal rejection of its tender.
Dorsch Consult sought to rely on a Directive which had not been fully transposed
into German law, but which Dorsch Consult claimed was directly effective. Dorsch
Consult sought to have the contract-awarding procedure stopped and to have the
contract awarded to it.
The first instance supervising authority declined jurisdiction on the basis that it had
no power to review contracts relating to services. Dorsch Consult appealed to a
further supervisory body, the Federal Public Procurement Awards Supervisory
Board (hereinafter referred to as the Federal Supervisory Board) on the grounds
that the original review body had wrongly declined jurisdiction. The Federal
Supervisory Board referred a series of questions to the Court of Justice concerning
the interpretation of Council Directive 92/50/EEC relating to the coordination of
procedures for the award of public service contracts.
5See Dorsch Consult (Case C-54/96), Vassen (Case C-61/65), Pretore di Salo (Case C-14/86),
Danfoss (Case C-109/88) and Almelo (Case C-595/92).

The Court of Justice considered whether the Federal Supervisory Board was “a
court or tribunal” within the meaning of Article 267 TFEU (at [24]-[38]):
• As the Federal Supervisory Board had been established by Statute, it

had clearly been established by law.
• There was no doubt about the permanent existence of the Federal
Supervisory Board.
• On compulsory jurisdiction, the Court of Justice notes that the Federal
Supervisory Body was the only body for reviewing the legality of
decisions made by review bodies. In order to establish whether there
had been a breach of provisions governing public procurement, application
had to be made to the supervisory board.
• When the Federal Supervisory Board finds that determinations made by a
review body are unlawful, it directs that body to make a fresh
determination, in conformity with the supervisory board’s findings on points
of law. Thus determinations of the supervisory board were binding.
• The inter partes criterion was not an absolute one, but in any event
domestic law required that parties to the procedure before the
procurement review body must be heard before any determination could
be reached.
• On application of rules of law, the Court of Justice noted that the Federal
Supervisory Board was obliged to apply Directives and any national
measures transposing them and that there were general rules of
procedure to be applied by the Federal Supervisory Board set down in
published domestic rules. The Court stated that the Federal Supervisory
Board applied rules of law.
• The Court stated that national law required the Federal Supervisory Board
to carry out its tasks independently and under its own responsibility.
The Court also stated that according to another provision of domestic law,
the members were independent and subject only to the observance of law.
Further provisions of a domestic law concerning annulment or
appointment, and concerning their independence and removal from office,
applied by analogy to the official members of the Federal Supervisory
Board. The provisions in that law relating to annulment and withdrawal of
judges’ appointments also applied to lay members and a further domestic
provision ensured their impartiality by requiring that they did not hear cases
in which they were involved as decision-makers or if they were tenderers
or representatives of tenderers.
The Court concluded:
37. It must also be pointed out that, in this particular instance, the Federal
Supervisory Board exercises a judicial function, for it can find that a
determination made by a review body is unlawful and it can direct the
review body to make a fresh determination.
38. It follows from all of the foregoing that the Federal Supervisory Board
in the procedure which led to this reference for a preliminary ruling is to
be regarded as a court or tribunal within the meaning of [Article 267

TFEU] so that the question it has referred to the Court is admissible.
[Emphasis added.]
Arbitration?
In Nordsee Deutsche Hochseefischerei GmbH v. Reererei [1982] ECR 1095 Case
102/81, an arbitrator appointed by virtue of an arbitration clause in a private
contract was not a court or tribunal as the arbitrator’s jurisdiction was not
compulsory. This decision can be contrasted with Case 109/88 Handels-og [1989]
ECR 3199 which suggests that if the law of a Member State imposes arbitration on
the parties and the Member State law governs the composition of the arbitration
board the arbitration board may be a tribunal within the meaning of Article 267
TFEU. In this case jurisdiction of the Danish Industrial Board was not dependent
on the parties’ agreement and Danish law governed the composition of the board.
In Borker [1980] ECR 1975 (Case 138/80) the Court of Justice emphasised that
the body must be exercising functions of a judicial nature. A French lawyer, a
member of Paris Bar was refused permission to represent civil party in criminal
proceedings in another Member State (Germany). The Paris Bar was not under an
obligation to try the dispute.
It is apparent from [Article 267 TFEU] that the Court can only be requested
to give a preliminary ruling under [Article 267 TFEU] by a court or tribunal
which is called upon to give judgment in proceedings intended to lead to a
decision of a judicial nature. That is not the position in this case since the
Conseil de l’ordre does not have before it a case which it is under a legal
duty to try but a request for a declaration relating to a dispute between a
member of the Bar and the courts or tribunals of another Member State.
In Victoria Films A/S [1998] ECR I 7023 (Case C-134/97), the Court of Justice held
that a tax body at first instance determining a tax liability was exercising an
administrative rather than a judicial function and was therefore not “a court or
tribunal” for the purposes of Article 267 TFEU.
Where a body exercises both judicial and administrative functions, it may not
request a preliminary ruling when it is exercising its administrative functions. Job
Centre [1995] ECR I 3361 (Case C-111/94) iinvolved a reference from the Civil
and Criminal District Court of Milan. A question was raised in the context of an
application submitted to the Court by Job Centre for confirmation of its
memorandum and articles of association in accordance with the Italian Civil Code.
The Court of Justice stated that it was apparent from the text of Article 267 TFEU
that a national court may refer a question only if a case is pending before it and if
it is called upon to give judgment in proceedings intending to lead to a decision of
a judicial nature. This was not the situation in this case. The District Court was
exercising a non-judicial function. It was an administrative decision. The District
Court was not called upon to settle a dispute.
Broekmeulen v. Huisarts Registratie Commissie [1981] ECR 2311 (Case 246/80)

concerned Broekmeulen, who was of Dutch nationality but who had qualified as a
doctor in Belgium. He sought to establish himself as a doctor in the Netherlands.
To practise as a doctor in the Netherlands it was necessary to register, and
registration was governed by two bodies established under the auspices of a

private association, the Royal Netherlands Society for the Promotion of
Medicine. Broekmeulen applied to the Registration Committee, was refused and
appealed to the Appeals Committee for General Medicine. The Appeals
Committee was not a court or tribunal under Dutch law, but which did follow an
adversarial procedure and did allow legal representation. The Appeals Committee
referred a question concerning the interpretation of Council Directive 75/362 of 16
June 1975 concerning the mutual recognition of diplomas, certificates and other
evidence of formal qualifications in medicine. The reasoning of the Court of Justice
is instructive.
16 In order to deal with the question of the applicability in the present case
of Article [267 TFEU] , it should be noted that it is incumbent upon Member
States to take the necessary steps to ensure that within their own territory
the provisions adopted by the community institutions are implemented in
their entirety. If, under the legal system of a Member State, the task of
implementing such provisions is assigned to a professional body acting
under a degree of governmental supervision, and if that body, in
conjunction with the public authorities concerned, creates appeal
procedures which may affect the exercise of rights granted by Community
law, it is imperative, in order to ensure the proper functioning of Community
law, that the Court should have an opportunity of ruling on issues of
interpretation and validity arising out of such proceedings.
17 . . . in the absence, in practice, of any right of appeal to the ordinary

courts, the appeals committee, which operates with the consent of the
public authorities and with their cooperation, and which, after an adversarial
procedure, delivers decisions which are in fact recognised as final, must,
in a matter involving the application of Community law, be considered as a
court or tribunal of a member state within the meaning of Article [267
TFEU]. Therefore, the court has jurisdiction to reply to the question asked.
In De Coster [2001] ECR I 9445 (Case C-17/00), Advocate General Ruiz-Carabo

Colomer opined that the case-law on what amounted to “a court or tribunal” for the
purposes of Article 267 TFEU offered insufficient guidance and was in need of
clarification. He described the test as “casuistic, very elastic and not very scientific,
with such vague outlines that a question referred for a preliminary ruling by Sancho
Panza as governor of the island of Barataria would be accepted.” He expressed
concern about the number of bodies which might seek to refer after enlargement
and proposed a new stricter test. He considered that the referring body in that
case (the Judicial Board of the Brussels-Capital region) was not a judicial one and
should not be entitled to make a reference.
The Court of Justice reiterated the criteria set out in Dorsch Consult and held that
the reference was admissible. The Court found that the body was a permanent
body, established by law, that it gives legal rulings and that the jurisdiction invested
in it to give local tax proceedings is compulsory. The Court of Justice reiterated
that the inter partes criterion is not an absolute one (see also Dorsch Consult) but
considered that the proceedings were inter partes, adversarial and that oral
observations could be presented at an oral hearing. The Court of Justice
considered that there was no reason to conclude that the criteria of independence
and impartiality were not satisfied, where the members were appointed by a

Regional Council and not by the municipal tax authorities whose decisions the
board was required to consider and where the members could not be members of
the Regional Council or staff of the municipal authority. It was possible to challenge
appointments to the Board in the same way as to challenge appointments to the
Judiciary and appointments once made were for an unlimited time and could not
be revoked.
Finally, in Banco de Santander SA (Case C‑274/14 EU:C:2020:17) the Grand

Chamber, in assessing the admissibility of a reference for a preliminary ruling from
the Central Tax Tribunal of Spain (“TEAC”), examined whether this body
constituted a “court or tribunal” for the purposes of Article 267 TFEU.
While the Court held that there was no doubt that the TEAC satisfied the criteria
that it be established by law, that it be permanent, that its jurisdiction be
compulsory, that its procedure be inter partes and that it apply rules of law, a
question arose as to whether the TEAC fulfilled the criterion of independence.
Assessing said criterion the CJEU reasoned:
56 . . . the independence of national courts and tribunals is essential to

the proper working of the judicial cooperation system embodied by the
preliminary ruling mechanism established by Article 267 TFEU, in that, in
accordance with the settled case-law of the Court referred to in
paragraph 51 of the present judgment, that mechanism may be activated
only by a body responsible for applying EU law which satisfies, inter alia,
that criterion of independence (judgment of 27 February 2018, Associação
Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 43).
57 According to the case-law of the Court, the concept of ‘independence’

has two aspects. The first aspect, which is external, requires that the body
concerned exercise its functions wholly autonomously, without being
subject to any hierarchical constraint or subordinated to any other body and
without taking orders or instructions from any source whatsoever, being
thus protected against external interventions or pressure liable to impair
the independent judgment of its members and to influence their decisions
(judgment of 27 February 2018, Associação Sindical dos Juízes
Portugueses, C-64/16, EU:C:2018:117, paragraph 44 and the case-law
cited).
58 Again as regards the external aspect of the concept of

‘independence’, it should be noted that the irremovability of the members
of the body concerned constitutes a guarantee that is essential to judicial
independence in that it serves to protect the person of those who have the
task of adjudicating in a dispute (see, to that effect, judgments of
19 September 2006, Wilson, C-506/04, EU:C:2006:587, paragraph 51,
and of 27 February 2018, Associação Sindical dos Juízes Portugueses,
C-64/16, EU:C:2018:117, paragraph 45).
59 The principle of irremovability, the cardinal importance of which is to

be emphasised, requires, in particular, that judges may remain in post

provided that they have not reached the obligatory retirement age or until
the expiry of their mandate, where that mandate is for a fixed term. While
it is not wholly absolute, there can be no exceptions to that principle unless
they are warranted by legitimate and compelling grounds, subject to the
principle of proportionality. Thus it is widely accepted that judges may be
dismissed if they are deemed unfit for the purposes of carrying out their
duties on account of incapacity or a serious breach of their obligations,
provided the appropriate procedures are followed (judgment of 24 June
2019, Commission v Poland (Independence of the Supreme Court),
C-619/18, EU:C:2019:531, paragraph 76).
60 The guarantee of irremovability of the members of a court or tribunal

thus requires that dismissals of members of that body should be
determined by specific rules, by means of express legislative provisions
offering safeguards that go beyond those provided for by the general rules
of administrative law and employment law which apply in the event of an
unlawful dismissal (see, to that effect, judgment of 9 October 2014, TDC,
C-222/13, EU:C:2014:2265, paragraphs 32 and 35).
61 The second — internal — aspect of the concept of ‘independence’ is

linked to ‘impartiality’ and seeks to ensure a level playing field for the parties
to the proceedings and their respective interests with regard to the subject
matter of those proceedings. That aspect requires objectivity and the
absence of any interest in the outcome of the proceedings apart from the
strict application of the rule of law (judgment of 16 February 2017, Margarit
Panicello, C-503/15, EU:C:2017:126, paragraph 38 and the case-law
cited).
62 Thus, according to the settled case-law of the Court, the concept of

‘independence’, which is inherent in the task of adjudication, implies above
all that the body in question acts as a third party in relation to the authority
which adopted the contested decision (see, to that effect, judgments of
30 March 1993, Corbiau, C-24/92, EU:C:1993:118, paragraph 15, and of
9 October 2014, TDC, C-222/13, EU:C:2014:2265, paragraph 29 and the
case-law cited).
63 Those guarantees of independence and impartiality require rules,

particularly as regards the composition of the body and the appointment,
length of service and the grounds for abstention, rejection and dismissal of
its members, in order to dismiss any reasonable doubt in the minds of
individuals as to the imperviousness of that body to external factors and its
neutrality with respect to the interests before it (judgment of 9 October
2014, TDC, C-222/13, EU:C:2014:2265, paragraph 32).”
Considering the foregoing, the Court observed that the President and members of
the TEAC were appointed by Royal Decree adopted by the Council of Ministers,
on the proposal of the Minister for the Economy and Finance, for an indefinite
period and could be removed from office by Royal Decree. Members of the TEAC
were covered solely by the general rules of administrative law and by the basic
regulations relating to civil servants. Therefore the removal of the President and

the other members of the TEAC was not limited, as required by the principle of
irremovability, to certain exceptional cases and the applicable national legislation
did not ensure that the President and the other members of the TEAC were
protected against direct or indirect external pressures that were liable to cast doubt
on their independence.6 Accordingly the Court found that the TEAC did not satisfy
the internal aspect of the requirement of independence that is characteristic of a
court or tribunal.7
6.3 Irish “Courts or Tribunals”
Irish courts and tribunals which have referred questions include the Supreme Court
(for example, McB v. E [2010] ECR I 8965 (C-400/20 PPU)), the Court of Appeal
(for example, Danqua v Minister for Justice Equality and Law Reform [2015] IECA
118) and the High Court (for example, Metock v. Minister for Justice Equality and
Law Reform [2008] ECR I 6241 (C-127/08) and MM v. Minister for Justice Equality
and Law Reform, Ireland and Attorney General ECLI:EU:C:2012:744 (Case C-
277/11)), the Circuit Court, the District Court and the Labour Court (Impact v.
Minister for Agriculture [2008] ECR I 2483 (Case C-268/06)).
The Equality Tribunal referred a case; Z v. A Government Department and the

Board of Management of a Community School ECLI:EU:C:2014:159 (C-363/12)
The case was concerned with maternity leave rights of a mother whose child was
born through surrogacy. From the judgment it does not appear that any issue was
taken regarding the authority of the Equality Tribunal to refer a case to the CoJ.
On the sustantive issues, the CoJ determined, by reference to the relevant
directives, that failure to provide paid maternity leave to a female worker who has
had a baby through a surrogacy arrangement as a commissioning mother did not
constitute discrimination on the grounds of sex; and that failure to provide paid
maternity leave to a worker who is unable to bear a child and who has availed of
a surrogacy arrangement did not constitute discrimination on the ground of
disability.
The vast majority of references from Irish courts have been from the Supreme
Court and the High Court.
McDonagh v. Ryanair Ltd ECLI:EU:C:2013:43 (Case C-12/11), a case which was

decided on 31 January 2013, involved a reference from the Dublin District Court
concerning the liability of Ryanair for expenses incurred by the applicant when her
flight was cancelled due to the Icelandic volcanic ash cloud. The reference
concerned the interpretation of Regulation 261/2004 on compensation and
assistance to passengers in the event of denied boarding and of cancellation of
long delay of flights. The value of the claim was approximately €1000.00. The CoJ
held:
1. Article 5 of Regulation (EC) No 261/2004 of the European Parliament

and of the Council of 11 February 2004 establishing common rules on
compensation and assistance to passengers in the event of denied
boarding and of cancellation or long delay of flights, and repealing
6 Para.s 64-68.
7 Para. 77.

Regulation (EEC) No 295/91, must be interpreted as meaning that
circumstances such as the closure of part of European airspace as a result
of the eruption of the Eyjafjallajökull volcano constitute “extraordinary
circumstances” within the meaning of that regulation which do not release
air carriers from their obligation laid down in Articles 5(1)(b) and 9 of the
regulation to provide care.
2. Articles 5(1)(b) and 9 of Regulation No 261/2004 must be interpreted as

meaning that, in the event of cancellation of a flight due to ‘extraordinary
circumstances’ of a duration such as that in the main proceedings, the
obligation to provide care to air passengers laid down in those provisions
must be complied with, and the validity of those provisions is not affected.
However, an air passenger may only obtain, by way of compensation for

the failure of the air carrier to comply with its obligation referred to in Articles
5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement
of the amounts which, in the light of the specific circumstances of each
case, proved necessary, appropriate and reasonable to make up for the
shortcomings of the air carrier in the provision of care to that passenger, a
matter which is for the national court to assess.
This was the first time that the District Court had made a preliminary reference.8
In HID, BA v. Refugee Applications Commissioner, Refugee Appeals Tribunal,

Minister for Justice, Equality and Law Reform, Ireland, Attorney General
ECLI:EU:C:2013:45 (Case C-175/11) the CoJ discussed whether the Refugee
Appeals Tribunal – now the International Protection Appeals Tribunal - might be
considered a “court or tribunal” for the purposes of Article 267 TFEU. The Court
recognised (at [105]) the Refugee Appeals Tribunal as a court or tribunal:
Consequently, the answer to the second question is that Article 39 of

Directive 2005/85 does not preclude national legislation, such as that at
issue in the main proceedings, which allows an applicant for asylum either
to lodge an appeal against the decision of the determining authority
before a court or tribunal such as the Refugee Appeals Tribunal, and
to bring an appeal against the decision of that tribunal before a higher court
such as the High Court, or to contest the validity of that determining
authority’s decision before the High Court, the judgments of which may be
the subject of an appeal to the Supreme Court. [Emphasis added.]
7. Discretion v. Obligation to Refer

It is clear from the text of Article 267 TFEU that some courts have discretion to
refer while others are obliged to refer questions of European law. This distinction
is apparent in the second and third paragraphs of Article 267 TFEU.
Where such a question is raised before any court or tribunal of a Member

State, that court or tribunal may, if it considers that a decision on the
8 Another District Court reference has since been made in Case C-321/16 Pardue.

question is necessary to enable it to give judgment, request the Court of
Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or

tribunal of a Member State against whose decisions there is no judicial
remedy under national law, that court or tribunal shall bring the matter
before the Court of Justice. [Emphasis added.]
It is apparent from the test of these two paragraphs that the distinction is drawn on
the basis of whether a judicial remedy from the decision of the court or tribunal is
available. Where a question is raised before a court or tribunal from which there
is no judicial remedy and that court considers that a decision on the question is
necessary to enable it to give judgment, that court or tribunal is under an obligation
to refer a question to the Court of Justice.
On the other hand, a court or tribunal from which there is a judicial remedy has
discretion whether to refer a question or not.
The CoJ has consistently held that courts have the widest discretion in referring
matters to the Court if they consider that a case pending before them raises
questions involving interpretation of, or consideration of the validity of, provisions
of EU law. This was again emphasised in Ogieriakhi v. Minister for Justice and
Equality, Ireland, Attorney General and An Post [2014] ECLI:EU:C:2014:2068
(Case C-244/13) paragraph 52.
The substance of Ogieriakhi concerned state liability for infringements of EU law

in the context of the Citizenship Directive. The CoJ noted that the discretion of
national courts to make a reference to the Court if they consider it necessary to
obtain an interpretation of a provision of EU law (even if the question raised has
already been dealt with) would undoubtedly be limited if the exercise of that
discretion were a decisive factor in determining whether or not there had been an
obvious infringement of EU law, in order to assess the liability of the Member State
for an infringement of EU law. The CoJ considered that such an effect would
compromise the system, the purpose and the characteristics of the preliminary
reference procedure. The CoJ therefore determined that the seeking of a
preliminary reference by a national court on the substance of a law must not be
considered a decisive factor in determining whether there had been an obvious
infringement of that EU law on the part of the Member State in the context of a
claim for damages for state liability.
7.1 The limitation on the discretion to refer
Even where courts ordinarily have discretion to refer there is one situation where
their discretion is circumscribed. In Foto Frost v. Hauptzollamt Lübeck-Ost [1987]
ECR I-4199 (Case 314/85), the national court referred a question as to whether it
could declare a Commission Decision invalid by reference to a European
Community Regulation. The Court of Justice stated:
14. [Courts against whom there is a judicial remedy] may consider the
validity of a [European] Community act and, if they consider that the
grounds…for invalidity are unfounded, they may reject them concluding

that the measure is completely valid. By taking that action they are not
calling the existence of the [European] Community measure into question.
15 … those courts do not have the power to declare acts of the [European]
Community institutions invalid. As the Court emphasised in [an earlier case]
the main purpose of the powers accorded to the Court by Article [267
TFEU] is to ensure that Community law is applied uniformly by
national courts. That requirement of uniformity is particularly imperative
when the validity of a Community act is in question. Divergences between
courts in the Member States as to the validity of [European] Community
acts would be liable to place in jeopardy the very unity of the [European]
Community legal order and detract from the fundamental requirement of
legal certainty. [Emphasis added.]
It is clear from the decision in Foto-Frost that national courts do not have the
authority to find a Community law invalid. The Information Note on references from
national courts for a preliminary ruling states at paragraph 15:
Although national courts may reject pleas raised before them challenging
the validity of acts of an institution, body or agency of the Union, the Court
of Justice has exclusive jurisdiction to declare such an act invalid.
The limitation on a national court’s discretion only arises where a national court
considers that a provision of EU law is invalid. Thus a national court loses its
discretion and becomes obliged to refer a question of EU law when it considers
that a provision of EU law is invalid. If the national court considers that the
provision of EU law is valid, it has discretion whether to refer.
In Digital Rights Ireland Limited v. The Minister for Communications, Marine and
Natural Resources [2010] 3 IR 251, the plaintiff sought inter alia a declaration that
Directive 2006/24/EC (on the retention of data generated or processed in
connection with the provision of publicly available electronic communications
services or of public communications networks) was null and void. The plaintiff also
asked the High Court to refer the question of the validity of the Directive to the
Court of Justice.
The High Court (McKechnie J) held (at [113]) that:
I am also satisfied that the reference is required since I am unable to rule

on the validity of Community law (see Foto-Frost v. Hauptzollamt
Lübeck-Ost (Case C-314/85) [1987] E.C.R. I-4199). I would therefore grant
the application for a reference under Article 267 TFEU. [Emphasis added.]
In Digital Rights Ireland Limited v. The Minister for Communications, Marine and
Natural Resources ECLI:EU:C:2014:238 (C-293/12), the CoJ determined that the
Directive was invalid.
7.2 The Obligation to Refer
The obligation to refer is imposed on courts or tribunals of Member States against

whose judicial decisions there is no judicial remedy under national law. The

rationale is to prevent a body of case law which is not in accordance with EU law
in any Member State. The Court of Justice, in Intermodal Transports BV v.
Staatssecretaris van Financien [2005] ECR I 8191 (Case C-495/03), stated:
29. In that regard, it should be observed, in particular that the obligation to

refer a question for a preliminary ruling laid down by the third paragraph of
[Article 267 TFEU] in respect of national courts or tribunals against whose
decisions there is no judicial remedy is intended in particular to prevent a
body of national case law that is not in accordance with the rules of
[European] Community law from being established in a Member State,
[citing earlier decisions of the Court of Justice.]
7.3 Which courts and/or tribunals are obliged to refer questions?
It is not, however, always clear to which courts paragraph 3 of Article 267 TFEU
refers. Craig and de Búrca consider (at 466) that, “[t]here are two views about the
types of bodies covered by Article [267(3) TFEU]. According to the abstract theory,
the only bodies which come within this Article are those whose decisions are never
subject to appeal. According to the concrete theory, the real test is whether the
court or tribunal’s decision is subject to appeal in the type of case in question.”
Some guidance was given as to what constitutes a court which is under an

obligation to refer in Kenny Roland Lyckeskog [2002] ECR I 4839 (Case C-99/00).
Craig and de Búrca state (at 466) that “the concrete theory was affirmed in
Lyckeskog.” The CoJ held that a national court, whose decisions can be appealed
to the national Supreme Court only if the latter declares the appeal to be
admissible, is not a court against whose decision there is no judicial remedy. The
Court of Justice emphasised, however, that if a question of interpretation of
European law arises the national Supreme Court would be under an obligation to
refer either at the stage of examination of the admissibility or at the later stage.
That case involved a reference from a Swedish Court. It is noteworthy that it
appears that, under the Swedish system, it is the Supreme Court of Sweden which
exercises the “gatekeeper” function of determining what cases can be
substantively appealed to the Supreme Court.
Intermodal Transports BV v. Staatssecretaris van Financien [2005] ECR I 8191

(Case C-495/03), the Court of Justice also seems to confirm the concrete theory,
stating:
30 That objective [i.e. the objective of preventing a body of national case

law not in accordance with European Law from being established] is
secured, when subject to the limits established by the Court (Case 283/81
Cilfit and Others [1982] ECR 3415), supreme courts are bound by that
obligation to refer as is any other national court or tribunal against whose
decisions there is no judicial remedy. (see Lyckeskog [2002] ECR I 4839,
paragraphs 14 and 15 and case-law cited). [Emphasis added.]
In Cartesio [2008] ECR I 9641 (Case C-210/06) the preliminary reference was
made in the context of proceedings brought by Cartesio, a limited partnership
established in Hungary against the decision rejecting the company’s application

for registration in the commercial register of the transfer of its seat to Italy. The
reference was body from an appellate body from which there could be an
extraordinary appeal, on a point of law.
The Court of Justice first considered whether the referring appellate court was “a
court or tribunal” for the purposes of Article 267 TFEU. The Court considered that
a court hearing an appeal which had been brought against a decision of a lower
court responsible for maintaining a register, rejecting an application for registration
of a company, and which seeks the setting-aside of that decision, which allegedly
adversely affects the rights of the applicant, is called upon to give judgment in a
dispute and is exercising a judicial function. The Court stated that the referring
court was hearing a dispute and exercising a judicial function although the
proceedings before the court were not inter partes. Thus, the Court of Justice
determined that the appellate court was a court or tribunal within the meaning of
Article 267 TFEU.
By its next question, the referring court sought to establish whether a court such
as the referring court, whose decisions such as its decision in the proceedings
might be appealed on points of law, fell to be classified as a court or tribunal from
which there was no judicial remedy within the meaning of the third paragraph of
Article 267 TFEU. The Court of Justice held:
76. … decisions of a national appellate court which can be challenged by

the parties before a supreme court are not decisions of “a court or tribunal
of a Member State against whose decisions there is no judicial remedy
under national law” within the meaning of the third paragraph of Article [267
TFEU]. The fact that the examination of the merits of such challenges
is conditional upon a preliminary declaration of admissibility by the
supreme court does not have the effect of depriving the parties of a
judicial remedy (Lyckeskog, paragraph 16).
77. That is true a fortiori in the case of a procedural system such as that
under which the case before the referring court must be decided, since that
system makes no provision for a preliminary declaration by the supreme
court that the appeal is admissible and, instead, merely imposes
restrictions with regard, in particular, to the nature of the pleas which may
be raised before such a court, which must allege a breach of law.
78. In common with the lack of suspensory effect of appeals on a point of

law before the Legfelsőbb Bíróság, such restrictions do not have the effect
of depriving the parties in a case before a court whose decisions are
amenable to an appeal on a point of law of the possibility of exercising
effectively their right to appeal the decision handed down by that court in a
dispute such as that in the main proceedings. It does not follow, therefore,
from those restrictions or from the lack of suspensory effect that that court
falls to be classified as a court handing down a decision against which there
is no judicial remedy. [Emphasis added.]
The Court of Justice therefore determined that the Hungarian appellate Court, from
which there was an exceptional right of appeal, on a point of law, was not a court

or tribunal from which there was no judicial remedy and therefore that it was not a
court or tribunal within the meaning of paragraph 3 of Article 267 TFEU, i.e. that it
was not a court or tribunal with an obligation to refer.
The Grand Chamber’s decision in PFE (C-689/13, EU:C:2016:199) addressed the

discretion and obligation to refer once more. The case concerned proceedings
brought by PFE challenging the result of a public tender which awarded a contract
for the provision of cleaning and ground maintenance services to a rival company,
GSA. The Italian Council of State later ruled in respect of the counterclaim brought
by GSA challenging the main action on the grounds of admissibility, that the
counterclaim had to be given precedence and examined before the main action.
Under the Italian legal system, such a counterclaim was classified as “exclusive”
or “paralysing” on the basis that, where the counterclaim was deemed well
founded, the court seised was required to dismiss the main action as inadmissible
without assessing its merits.
The court seised of the action—the Council of Administrative Justice for the Region
of Sicily—sought to ascertain whether Article 267 TFEU precluded a situation
whereby a chamber of a national court of final instance must, if it does not agree
with the position adopted by decision of that court sitting in plenary session, refer
the question to the plenary session and is thus prevented from itself making a
request to the Court for a preliminary ruling.
The Court reaffirmed the importance of vesting in all national courts the possibility
of making a preliminary reference:
32. As the Court has repeatedly held, national courts have the widest
discretion in referring questions to the Court involving interpretation of
relevant provisions of EU law (see, to that effect, judgment in Rheinmühlen-
Düsseldorf, 166/73, EU:C:1974:3, paragraph 3), that discretion being
replaced by an obligation for courts of final instance, subject to certain
exceptions recognised by the Court’s case-law (see, to that effect,
judgment in Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21 and
operative part). A rule of national law cannot prevent a national court,
where appropriate, from using that discretion, (see to that effect,
judgments in Rheinmühlen-Düsseldorf, 166/73, EU:C:1974:3, paragraph 4;
Melki and Abdeli, C-188/10 and C-189/10, EU:C:2010:363, paragraph 42,
and Elchinov, C-173/09, EU:C:2010:581, paragraph 27) or complying
with that obligation.
33. Both that discretion and that obligation are an inherent part of the
system of cooperation between the national courts and the Court of
Justice established by Article 267 TFEU and of the functions of the court
responsible for the application of EU law entrusted by that provision to the
national courts.
34. As a consequence, where a national court before which a case is

pending considers that a question concerning the interpretation or validity
of EU law has arisen in that case, it has the discretion, or is under an
obligation, to request a preliminary ruling from the Court of Justice,

and national rules imposed by legislation or case-law cannot interfere
with that discretion or that obligation.
35. In the present case, a provision of national law cannot prevent a

chamber of a court of final instance faced with a question concerning
the interpretation of Directive 89/665 from referring the matter to the
Court of Justice for a preliminary ruling. [Emphasis added.]
In Commission v. France (Advance payment of tax) C-416/17, EU:C:2018:811, the

Court found that the obligation to make a request for a preliminary ruling had been
infringed by a court against whose decisions there was no remedy.
The Commission brought infringement proceedings against France sought a

declaration, inter alia, that the French Conseil d’État (Council of State) which is the
highest court in French administrative law, had infringed its obligation to make a
request for a preliminary ruling in a court of last resort.
The Council of State chose to depart from established CJEU case-law and to give
judgment in the pending cases before it, without making a request for a preliminary
ruling. The Court of Justice ruled:
107 … a Member State’s failure to fulfil obligations may, in principle, be

established under Article 258 TFEU whatever the agency of that State
whose action or inaction is the cause of the failure to fulfil its obligations,
even in the case of a constitutionally independent institution (judgments of
9 December 2003, Commission v Italy, C‑129/00, EU:C:2003:656,
paragraph 29, and of 12 November 2009, Commission v Spain, C‑154/08,
not published, EU:C:2009:695, paragraph 125).
108 … it must also be noted that, where there is no judicial remedy against
the decision of a national court, that court is in principle obliged to make a
reference to the Court within the meaning of the third paragraph of Article
267 TFEU where a question of the interpretation of the FEU Treaty is raised
before it (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209,
paragraph 42).
109 Moreover, the obligation to make a reference laid down in that

provision is intended in particular to prevent a body of national case-law
that is not in accordance with the rules of EU law from being established in
any of the Member States (judgment of 15 March 2017, Aquino, C‑3/16,
110 Indeed, that court is not under such an obligation when it finds that
the question raised is irrelevant or that the provision of EU law in question
has already been interpreted by the Court or that the correct application of
EU law is so obvious as to leave no scope for any reasonable doubt, and
the existence of such a possibility must be assessed in the light of the
specific characteristics of EU law, the particular difficulties to which its
interpretation gives rise and the risk of divergences in judicial decisions
within the European Union (see, to that effect, judgments of 6 October
1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21; of 9

September 2015, Ferreira da Silva e Brito and Others, C‑160/14,
EU:C:2015:565, paragraphs 38 and 39; and of 28 July 2016, Association
France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 50).
111 In that regard, as regards the matter examined in the context of the
first complaint of the present action for failure to fulfil obligations, as the
Advocate General observed in point 99 of his Opinion, the judgment of 15
September 2011, Accor (C‑310/09, EU:C:2011:581), being silent in that
respect, the Conseil d’État (Council of State) chose to depart from the
judgment of 13 November 2012, Test Claimants in the FII Group
Litigation (C‑35/11, EU:C:2012:707), on the ground that the British
scheme at issue was different from the French tax credit and advance
payment scheme, while it could not be certain that its reasoning
would be equally obvious to the Court.
112 Furthermore, it follows from what was held in paragraphs 29 to 46 of

the present judgment, in the context of examining the first complaint raised
by the Commission, that the absence of a reference for a preliminary ruling
on the part of the Conseil d’État (Council of State) in the cases giving rise
to the judgments of 10 December 2012, Rhodia
(FR:CESSR:2012:317074.20121210), and of 10 December 2012, Accor
(FR:CESSR:2012:317075.20121210), led that court to adopt, in those
judgments, a solution based on an interpretation of the provisions of
Articles 49 and 63 TFEU which is at variance with that of the present
judgment, which implies that the existence of reasonable doubt
concerning that interpretation could not be ruled out when the
Conseil d’État (Council of State) delivered its ruling.
113 Consequently, there is no need to examine the other arguments put

forward by the Commission in the context of the present complaint and it
must be held that it was for the Conseil d’État (Council of State), as a
court or tribunal against whose decisions there is no judicial remedy
under national law, to request a preliminary ruling from the Court of
Justice on the basis of the third paragraph of Article 267 TFEU in
order to avert the risk of an incorrect interpretation of EU law (see, to
that effect, judgment of 9 September 2015, Ferreira da Silva e Brito and
Others, C‑160/14, EU:C:2015:565, paragraph 44).
114 Consequently, since the Conseil d’État (Council of State) failed to

make a reference to the Court, in accordance with the procedure provided
for in the third paragraph of Article 267 TFEU, in order to determine whether
it was necessary to refuse to take into account, for the purpose of
calculating the reimbursement of the advance payment made by a resident
company in respect of the distribution of dividends paid by a non-resident
company via a non-resident subsidiary, the tax incurred by that second
company on the profits underlying those dividends, even though its
interpretation of the provisions of EU law in the judgments of 10 December
2012, Rhodia (FR:CESSR:2012:317074.20121210), and of 10 December
2012, Accor (FR:CESSR:2012:317075.20121210), was not so obvious as
to leave no scope for doubt, the fourth complaint must be upheld.

7.4 The Irish context
In An Taoiseach v. The Commissioner for Environmental Information & Fitzgerald

[2010] IEHC 241, the High Court (O’Neill J) stated (at [10.1]) that as the High Court
was “not a Court of last resort in this jurisdiction with competence to deal with the
issues of EU law which have arisen in this case, I have decided to exercise my
discretion to refuse the respondents application for such a reference.”
However, in Irish law, prior to the establishment of the Court of Appeal, under a
number of specific statutory schemes for judicial review, no appeal lay to the
Supreme Court in respect of a determination by the High Court on an application
for leave, save with the leave of the High Court which could only be granted where
the High Court certified that its decision involved a point of law of exceptional public
importance. This raised the question of whether the High Court might be a court
from which there was no judicial remedy within the meaning of the third paragraph
of Article 267 TFEU? A further question arose as to which stage the High Court
might become a court from which there is no judicial remedy within the meaning of
the third paragraph of Article 267 TFEU. Was it at the stage when it refused leave,
or at the stage when it refused to certify a point of law of exceptional public
importance?
This issue was raised, albeit at a very late stage of the proceedings in McNamara
v. An Bord Pleanála [1998] ILRM 313. McNamara had applied for judicial review
of a planning decision, by An Bord Pleanála, to allow a dump to be built near the
village of Kill in Co. Kildare. At the judicial review hearing it was held by the High
Court (Barr J) that the application was out of time. The applicant had applied for
judicial review within the relevant time period but filed an affidavit outside of time
in which non-compliance with an EC Directive was alleged. Barr J held that
specific grounds of appeal also had to be notified within the two-month period.
From this decision there was no right of appeal to the Supreme Court unless the
High Court certified a point of law of exceptional public importance. Following the
High Court decision, a motion was brought seeking a reference to the Court of
Justice. In a reserved judgment, Barr J held that since he had given judgment in
the case, he was precluded from referring a question to CoJ.
This point was appealed to the Supreme Court, which held, per Keane J at p 318,
there was no case “pending” in respect of which any such question could be
referred. It was argued in the Supreme Court that refusal to grant leave to appeal
made the High Court, a Court against which there was no judicial remedy and that
therefore the High Court would have been obliged to refer. The Supreme Court
considered that while that might be so, the High Court now had no jurisdiction to
refer as the case had been determined. It might have been different if the appellant
had informed the court that if the submission based on EC law were to be rejected,
he would apply for leave to appeal to the Supreme Court or apply for an Article
267 TFEU reference. As this course had not been taken, Keane J did not wish to
opine as to whether the High Court would be obliged to refer the matter to the
Court of Justice if it refused leave to appeal to the Supreme Court.
This issue was also considered in another planning case, Arklow Holidays Limited
v. Wiclow County Council,High Court, Unreported, Murphy J, 4 February 2004. In
a decision in October 2003, the High Court had refused a judicial review application

which attempted to quash a grant of planning permission by Wicklow County
Council. The applicant sought a certificate for leave to appeal the decision to the
Supreme Court. In order for the appeal to be permitted, the High Court was
required, pursuant to the relevant planning legislation, to certify that its decision
involved a point of law of exceptional public importance and that it was desirable
in the public interest that an appeal should be taken to the Supreme Court. The
applicant had attempted to refer a series of questions to the CoJ at the substantive
hearing, but the High Court had refused to do so. The High Court considered that
the matter had been decided and refused to certify the questions the applicant had
sought to refer as points of law of exceptional public importance for the purposes
of an appeal to the Supreme Court.
In the People (DPP) v. Ferris (1985) 3 Frewen 114, a case involving gun-running
off the Kerry coast, counsel sought to have the Court of Criminal Appeal refer a
question to the Court of Justice. There was an EC Directive in respect of units of
measurement. It was argued that the territorial limits of the State could not be fixed
by reference to “nautical miles” and that the Court should refer a question as to
whether “nautical miles” were incompatible with the Directive.
Assuming without deciding that this court is a court against whose

decisions there is no judicial remedy under national law within the meaning
of the last paragraph of Article [267 TFEU], that although this Court or the
Attorney General may certify an appeal to the Supreme Court in a matter
that has been decided by this Court, the ordinary reading of this paragraph
indicates a judicial remedy that does not require special leave the Court is
satisfied that the question posed is not a question within sub-paragraphs
[of the first paragraph] of Article [267 TFEU].
The Court of Criminal Appeal appeared to suggest obiter that it would be a court
within the meaning of the third paragraph of Article 267 TFEU.
The issue was of some concern in asylum and immigration cases where a
certificate of the High Court can be necessary to appeal to the Supreme Court. It
was particularly serious in these types of cases prior to the Treaty of Lisbon, as
this area of law was subject to a special preliminary reference procedure under
which only courts from which there was no judicial remedy were permitted to make
references.
In Lofinmakin (A Minor) v. Minister for Justice Equality and Law Reform and others
[2011] IEHC 116 Cooke J appeared to accept that were he to refuse a certificate
to appeal from the High Court to the Supreme Court, the High Court would have
been a court from which there was no judicial remedy, and hence the High Court
in that instance would have been a court within the meaning of Article 267(3)
TFEU. In the circumstances, he granted a certificate to appeal. The facts arose
in the context of deportation in an asylum and immigration case. Between the
hearing and the judgment the CoJ delivered judgment in Zambrano v. Office
national de l’emploi (ONEm) [2011] ECR 1177 (Case C-34/09). The questions
which were certified were:
1. Whether the High Court was correct that Article 23.4 of the Charter of
Fundamental Rights of the EU together with Article 51.1 has no

application to a decision under s.3(1) of the Immigration Act, 1999 to
deport a third country national citizen who is the parent of an Irish
citizen resident in the State and
2. Whether the High Court had applied the decision in Meadows correctly.
With the establisment of the Court of Appeal, this issue might arise if there were
only a limited possibility of appeal from the High Court to the Court of Appeal. It
would also arise in relation to the Court of Appeal itself in any circumstances where
there is only a limited right of appeal to the Supreme Court.
7.5 Exceptions to the Obligation to Refer
The Court of Justice has identified a number of circumstances where, even a court
against whose decision there is no judicial remedy, does not have to refer. First
where a prior Article 267 ruling exists on the same issue in a previous case;
Da Costa [1963] ECR 31 (Joined Cases 28-30/62), (where the facts and the
questions asked were materially identical to Van Gend en Loos (Case 26/62)).
Secondly, where a decision on a question of EU Law is not necessary; the text
of Article 267 TFEU and CILFIT v. Ministry of Health [1982] ECR 3415 (Case
283/81). Thirdly, where the doctrine of acte clair applies; CILFIT v. Ministry of
Health [1982] ECR 3415 (Case 283/81) (discussed below). Fourthly, where
interlocutory proceedings (before the national court) are involved; Hoffmann- la
Roche v. Centrfarm [1977] ECR 957 (Case 107/76).
The decision in CILFIT v. Ministry of Health [1982] ECR 3415 (Case 283/81)
introduced the concept of acte clair (without referring to it as such.) The Court of
Justice stated:
16. Finally, the correct application of Community law may be so obvious as

to leave no scope for any reasonable doubt as to the manner in which the
question raised is to be resolved. Before it comes to the conclusion that
such is the case, the national court or tribunal must be convinced that the
matter is equally obvious to the courts of the other Member States and to
the Court of Justice. Only if those conditions are satisfied, may the national
court or tribunal refrain from submitting the question to the Court of Justice
and take upon itself the responsibility for resolving it.
The doctrine of acte clair relieves a court of the obligation to refer a question where
the application of EU law is without doubt. The doctrine is subject to the
qualifications that it must be equally obvious to the courts of other Member States
and to the Court of Justice. In some recent judgments, the Irish Supreme Court
when called upon to make references to the Court of Justice has refused to do so
on the basis that the application of EU law is clear.
In Martin v. An Bord Pleanála, Ireland and the Attorney General [2008] 1 IR 336,
the notice party Indaver Limited had applied for and been granted planning
permission to build an incinerator waste management facility. An Bord Pleanála
upheld the decision to grant planning permission. The applicant sought judicial
review of the Board’s decision. The applicant alleged that the environmental
assessment carried out by the Board was not in accordance with the provisions of

the Environmental Impact Assessment Directive (Council Directive 85/337/EEC as
amended by Council Directive 97/11/EC). The applicant argued that the
Environmental Impact Directive had not been implemented properly into Irish law.
Murray CJ with whom Denham and Geoghegan JJ concurred) stated:
In relation to each of the above issues which I have addressed, I have found
that the meaning and intent of the directive is clear. In advancing the three
points which he did it seems to me that the applicant is clutching at straws
in his opposition to the decision made by the Board.
The appeal should be dismissed. I do not see any reasonable scope for
doubt on these issues. Having regard to the decision of the European Court
of Justice in Cilfit v. Ministero della Sanitá (Case C –283/81) [1982] E.C.R.
3415 and the criteria which it sets out I am quite satisfied that there is no
necessity to make a reference to the European Court of Justice pursuant
to [Article 267 TFEU].
T v. L [2008] IESC 48, Fennelly J (nem diss) involved a family law case in which
the wife sought maintenance from her husband. The Supreme Court considered
whether a reference to the CoJ was necessary.
“102. The judgment in CILFIT stipulates that, even in those cases, where
the court of a Member State is not obliged to make a reference, it
retains, nonetheless, a discretion to do so. I consider, therefore,
whether the Court is obliged to make a reference and, separately, whether
it should, in its discretion, do so in any event.
103. I have come to very clear conclusions to the effect that the appellant’s
arguments are unfounded and, in many respects, without merit. [Emphasis
added.]
The Supreme Court then set out (at [104]–[111]) detailed reasons why (a) it was
not under an obligation to refer and (b) it would not exercise its discretion to refer.
In Compagnie Gervais Danone v. Glanbia Foods Society Ltd [2010] IESC 36, a
trademarks case, the Supreme Court also refused to make a reference.
The Court of Justice also clarified in CILFIT that final courts are in the same
position as other national courts in deciding whether they need to resolve a
question of Community law before giving judgment. The CILFIT decision is also
important for clarifying that a previous ruling can be relied on even if it does not
emerge from the same type of proceeding. Through the Da Costa and CILFIT
rulings the Court of Justice is establishing some sort of system of precedent.
In Intermodal Transports BV v. Staatssecretaris van Financien [2005] ECR I 8191

(Case C-495/03) the Court of Justice summarised the exceptions to the obligation
to refer as follows:
33...in respect of national courts or tribunals against whose decisions there

is no judicial remedy under national law, it should be remembered that the
third paragraph of Article [267 TFEU] must, following settled case-law, be

interpreted as meaning that such courts or tribunals are required, where a
question of Community law is raised before them, to comply with their
obligation to make a reference, unless they have established that the
question raised is irrelevant or that the Community provision in question
has already been interpreted by the Court or that the correct application of
Community law is so obvious as to leave no scope for any reasonable
doubt. The existence of such a possibility must be assessed in the light of
the specific characteristics of Community law, the particular difficulties to
which its interpretation gives rise and the risk of divergences in judicial
decisions within the Community. [Emphasis added.]
James Elliott Construction Ltd. v. Irish Ashphalt Ltd. [2014] IESC 74 concerned a
construction dispute in respect of pyrite heave. The appellants contended they
were not liable, inter alia, as a matter of EU law; or, in the alternative, that the
matter should have been referred to the Court of Justice of the European Union
for consideration as it related to the Technical Standards Directive (98/34/EC).The
Court discussed the obligation to refer under Article 267(3) TFEU: This matter9 is
still pending before the Court of Justice of the European Union.
154. As this Court is a court of final appeal, there is a mandatory obligation

on it to refer questions of European law to the CJEU where the resolution
of the case involves a question of European law and where the resolution
of that issue is not, by virtue of the law of the European Union as interpreted
by the CJEU, obvious, or as the well known phrase describes, acte clair.
The test which must be applied by a national court in deciding whether a
reference is required is identified in Case C-283/81 C.I.L.F.I.T. Srl & Ors v.
Ministero della Sanita’ [1982] ECR 3415 (“CILFIT”). One difficulty facing
national courts considering the question of whether or not to refer one or
more questions to the CJEU is not merely that the threshold in CILFIT is
low, but that the parties’ arguments inevitably focus not upon the
correctness of the proposition contended for, but simply its arguability. This
will often mean, in effect, seeking to establish a lack of clarity in the existing
law. This test provides a perverse incentive to parties seeking references
to search not for clarity, but for doubt, uncertainty and conflicting views. In
this rather unreal world, the absence of any authority or academic support
for a proposition becomes an argument to be deployed as to why the views
of the CJEU should be obtained on, what on this argument becomes, a
novel argument. This is no criticism of the exhaustive and thorough
arguments advanced by Irish Asphalt in this case but rather an observation
of the structure to which those arguments are required to conform. It is
necessary and important however to seek to identify with some clarity the
precise arguments made which are said to be both necessary for the
determination of this dispute between the parties and can be said to be not
so obvious so that a reference to the CJEU is required. …
159. The Court is conscious of its obligation in law to refer to the CJEU any
issue which properly requires reference, in accordance with the terms of
Article 267 TFEU, as interpreted by the CJEU. Such a reference does not
however come without costs to the litigants, this Court and indeed the
9 James Elliott Construction Ltd. v. Irish Ashphalt Ltd. (Case C-613/14).

CJEU itself. It inevitably delays judgment in a dispute between the parties,
increases costs and necessarily increases the burden on the CJEU already
labouring under an extensive workload. It is important therefore to go
beyond the level of generalisations and consider with some care the
precise issues arising and to determine whether conscientiously applying
the decision of the CJEU in CILFIT, a question or questions arise which it
is necessary to refer in order to decide the case. It follows that there may
be issues on which there is a degree of uncertainty, which if squarely raised
would require a reference but which on analysis, it is apparent are not
necessary to decide in order to decide the case. By the same token it may
be possible to decide a case on grounds of national law, or by application
of EU law in relation to which there is or can be no dispute. In such cases
it will not be necessary to decide contentious issues of European law which
are raised in the case and therefore not necessary to refer a question.”
Ultimately, the Court found that questions raised by the appellant, namely, whether
legal obligations contained in the Technical Standards Directive, addressed to
Member States, applied in the context of the adoption of national standards or
regulations; and whether the standard or regulation alleged to have been adopted
was in breach of obligations imposed by the Directive could not be said to be clear
or self-evident and could have some impact on the outcome of the proceedings
thus the Court was obliged to make a reference pursuant to Article 267 TFEU.
8. Appeals
In Campus Oil v. Minister for Energy [1983] IR 82, the High Court had referred
questions to the Court of Justice. Several of the defendants appealed that decision
to the Supreme Court. The Supreme Court considered that no appeal lay from a
decision of a High Court judge to refer a question of EC law and that the High Court
judge was exercising an untrammelled discretion.
In The Data Protection Commissioner & Anor. v. Facebook Ireland Ltd. & Anor.
[2018] IESC 38, the Respondent sought leave to challenge the decision of Costello
J to make a reference for a preliminary ruling pursuant to Article 267 TFEU in the
earlier case of The Data Protection Commissioner v. Facebook Ireland Ltd. & Anor.
[2017] IEHC 545.
The Respondent argued that either Campus Oil was wrongly decided or it could
be distinguished from these proceedings due to their unusual nature, i.e., that the
Court of Justice was effectively being asked to make a final decision on the validity
of the measures of the European institutions which were under scrutiny such that
the matter would not come back to the Irish courts to deal with any subsequent
matter of substance.
For the Supreme Court, Clarke CJ acknowledged (at [7.6]):
[Because] there are issues which require to be determined both as to

whether an appeal lies at all and, if so, the type of appeal which may be
permitted, it seems clear that the issues thus raised are of very
considerable significance affecting as they do the proper interaction of the

Irish Constitution with the reference procedure set out in Article 267. Those
issues clearly meet the constitutional threshold for leave to appeal and are
of particular general importance.
Accordingly, Clarke CJ granted leave to appeal to the Supreme Court by way of

“leapfrog appeal” to challenge Campus Oil.
In a judgment in May 2019 ([2019] IESC 46), Clarke CJ noted (at [6.3]) the specific
circumstances in Campus Oil, notably, an appeal did not lie to the Supreme Court
against an order of reference to the Court of Justice was because it was considered
that the order of reference in that case did not amount to a “decision” of a lower
court, in the sense in which that term is used in the constitutional provisions
concerning appeals within the Superior Courts.10
In addition, it was observed that the High Court, in Campus Oil, did not appear to
have reached any determination on matters of fact or of national law. The order of
reference in that case simply set out the two questions which were referred to the
Court of Justice. It seems to follow, therefore, that when Walsh J spoke of the
order of reference not being a “decision”, in the constitutional sense of that
term, he was speaking of the decision to refer and the formulation of the
questions on which the opinion of the Court of Justice was sought (at [6.4]).
Clarke CJ distinguished between the possibility of an appeal against a decision of

the High Court to make a preliminary reference, and an appeal against findings of
fact contained in a judgment making a reference to the CJEU:
6.13 … there may very well be good reasons why it would be wholly
inappropriate for an appellate court to consider an appeal while a reference
is pending . . . from issues relating to the interests of justice and the proper
use of judicial resources which suggest that it is better to leave all issues
which might arise on appeal to be resolved in a single appeal after the
proceedings have been concluded in the lower court. However, there can
be exceptional circumstances where those considerations are
outweighed by other factors.
6.14 In the context of the sui generis process which was carried out by the
High Court in this case, by virtue of the decision of the CJEU in Schrems I,
it seems to me that there are exceptional factors at play. It is clear
from Schrems I that it is for the national referring court to determine the
facts and to reach a conclusion as to whether it shares the concerns of the
DPC, or her equivalent in other member states. Such a determination of
the facts (or of national law, should it be relevant) made by a referring
court is a “decision” which is capable of being appealed. However,
the type of reasons why an appellate court might not normally
entertain an appeal in such circumstances do not apply in this case.
As already noted, in most ordinary proceedings any finding of fact or of
national law will be subject to an appeal in the normal way, in accordance
10For the substantive judgment of the CJEU in respect of the preliminary reference of the
Supreme Court, see Facebook Ireland and Schrems (C-311/18, Judgment of the Grand Chamber
of 16 July 2020).

with the Irish appellate process. That provides a very strong justification for
leaving over an appeal against such findings until after the proceedings
have been finally determined at trial. However, where, as here, the only
purpose of the findings of fact is to feed into the ultimate analysis by the
CJEU as to the validity of the SCC Decisions under challenge, different
considerations apply. Unusually therefore, there can, in practice, be no
appeal against those findings of fact, for a definitive determination on the
validity of the challenged measures will have been taken by the CJEU.
Against that backdrop, I can see no reason which would lean the Court
against entertaining an appeal on the facts at this stage. Indeed, the
opposite is the case, for to decline to exercise the jurisdiction of the
Court to entertain an appeal against the facts at this stage would be
for this Court to abdicate its constitutional role of reviewing, within
the confines of the limitations imposed by Irish procedural law,
findings of fact made in a court such as the High Court…
6.16 … it is also necessary to consider whether, and if so, to what

extent, Union law imposes any restrictions. I have already identified the
clear limitations which the Cartesio jurisprudence imposes. There
certainly can be no appeal against the decision of the High Court to
make the reference… But I equally can see nothing in the Cartesio
jurisprudence which suggests that there is any Union law reason why
this Court cannot, in accordance with national law and procedure,
entertain an appeal against a finding of fact (or of national law, if it
arises) which formed part of the process leading to a reference.
6.17…the CJEU fully accepted that there was nothing inappropriate about
pursuing an appeal in accordance with the procedural law of the member
state concerned while the reference was pending, provided that it was
made clear that it was for the referring court, and it alone, to determine
what to do in the light of the result of the appeal. In that context, it is clear
that, as a matter of Irish law, a decision of this Court overturning a finding
of fact by the High Court would be binding on the High Court. However, it
is equally clear that, as a matter of Union law, the fact that such a
decision by this Court would be binding on the High Court cannot
remove from the High Court the entitlement which it, and it alone,
enjoys to decide whether to continue with, withdraw or amend the
reference. But it equally follows that there is no barrier in Union law
to this Court overturning decisions of fact or of national law of the
High Court, notwithstanding that a reference remains pending.
In Bulmer v. Bollinger [1974] 2 CMLRep 91 the English Court of Appeal held that
it was possible to appeal against a refusal to refer. It is also possible in that
jurisdiction to appeal against a decision to refer.
In Kruger [1997] ECR I 520 (Case 334/95) the Court of Justice stated that the
second paragraph of Article [267 TFEU] does not preclude a national court which
has ordered suspension of implementation of a national administrative decision
and referred to the Court for a preliminary ruling a question on the validity of the
EU act on which the decision is based from granting leave to appeal against its
decision.

8.1 Procedural matters
Input of the parties into the preliminary reference procedure
The Supreme Court recently provided guidance about the procedure for making a
reference in Dwyer v. The Commissioner of An Garda Síochána & Ors. [2020]
IESC 4, [2020] 1 ILRM 389. The Court decided to refer to the CJEU certain
questions concerning, among other things, the lawfulness under EU law of the
retention of telephone records.
In his judgment for the majority, Clarke CJ held:
7.3 . . . it seems to me that it is necessary that this court refers questions

to the CJEU under the provisions of Article 267 of the Treaty on the
Functioning of the European Union. I propose that the court should make
such a reference in the terms set out in a separate document which I will
circulate along with the delivery of this judgment. I would propose that the
parties be given a period of seven days to make observations on the text
of that document. In that context, I would emphasise that the decision which
I propose should be made by this court today would definitively determine
that there should be a reference and would also definitively determine the
broad issues which require to be addressed in that reference. The
observations which I propose that the parties should be permitted to make
should, therefore, be confined to matters of detail or issues concerning the
precise wording of the reference document. I would propose that the court,
having considered such observations as may be received within that
timeframe, should then finalise the reference document and arrange for its
transmission to the CJEU.
The Supreme Court adopted a similar approach, allowing for input of the parties,
in Fitzpatrick & Anor. v. Minister for Agriculture, Food and The Marine & Anor.
[2020] IESC 50.
Costs of preliminary reference proceedings

In Recorded Artists Actors Performers Ltd. v. Phonographic Performance (Ireland)
Ltd. & Ors. [2021] IEHC 22, Simons J made an Article 267 TFEU reference
regarding the interpretation of Directive 2006/115/EC in respect of copyright and
intellectual property rights.
Following the CJEU’s judgment (Case C-265/19) the matter was remitted to High
Court and the proceedings were then relisted before Simons J to address the
appropriate form of order to be made having regard to the judgment of the CJEU
and the allocation of the costs associated with the trial of the preliminary issues
and the proceedings before the CJEU. Simons J held that the plaintiff had been
“entirely successful” and was entitled to its costs; there were no discretionary
factors against such an order.
9. The relationship between Article 267 TFEU and Article 263 TFEU
Article 267 TFEU and Article 263 TFEU may be looked at as alternative
mechanisms to challenge the validity of (legally binding) acts of the institutions.

This issue will be examined later in the course when we look at judicial review
under Article 263 TFEU.
10. Article 267 TFEU and State Liability

In Kobler v. Austria [2003] ECR I-10239 (C-224/01) the CoJ held that a Member
State could be held liable in damages for the incorrect application of EC law by a
national court of last resort. The CoJ held that the wide discretion criteria applied
and in considering the sufficiently serious criterion stated that state liability for an
infringement of Community law by a decision of a national court adjudicating at last
instance can be incurred only in the exceptional case where the court has
manifestly infringed the applicable law.
What if a national court from which there is no appeal considers the question of
European law before it to be clear, relies on CILFIT and decides not to make a
reference. The Court of Justice suggested in Kobler that a Member State would
not be liable where a national court mistakenly but in good faith relies on CILFIT.
The Member State would be liable if it could be shown that the national court
deliberately misconstrued the CILFIT criteria to avoid having to make a reference.
11. Urgent Procedure

If such a question is raised in a case pending before a court or tribunal of

a Member State with regard to a person in custody, the Court of Justice of
the European Union shall act with the minimum of delay. [Emphasis
added.]
Article 107 of the Rules of Procedure provides for an urgent procedure in cases
which raise questions concerning the Area of Freedom, Security and Justice11 at
the request of the national court or exceptionally by the Court of Justice’s own
motion. The decision to deal with a reference under the urgent procedure shall be
taken by the designated chamber acting on a proposal from the Judge Rapporteur
and after hearing the Advocate General.
The most recent Court of Justice Information Note on references from

national courts for a preliminary ruling (2012/C 338/01) emphasises that the
urgent preliminary reference procedure, which applies only in in cases in the the
Area of Freedom Security and Justice should be requested only where it is
necessary for the CoJ to give its ruling very quickly.
A non-exhaustive list of examples is provided and includes cases where a person

is in custody or deprived of his liberty and proceedings concerning parental
authority or custody of children:
11 TFEU, Part Three, Title V.

40. Although it is not possible to provide an exhaustive list of such
circumstances, particularly because of the varied and evolving nature of
the rules of European Union law governing the area of freedom, security
and justice, a national court or tribunal might, for example, consider
submitting a request for the urgent preliminary ruling procedure to be
applied in the case, referred to in the fourth paragraph of Article 267 TFEU,
of a person in custody or deprived of his liberty, where the answer to the
question raised is decisive as to the assessment of that person’s legal
situation, or in proceedings concerning parental authority or custody of
children, where the identity of the court having jurisdiction under European
Union law depends on the answer to the question referred for a preliminary
ruling.
Rinau [2008] I ECR 5271 (C-195/08 PPU) was the first case decided by the Court
under the urgent preliminary ruling procedure. The case concerned an issue of
whether the Supreme Court of Lithuania should recognise a decision made by a
German court awarding custody of a child to her father, who was resident in
Germany, and ordering the mother, who was resident in Lithuania, to return the
child to the father.
A recent example of a decision on a preliminary reference from the Irish High Court
using the urgent procedure is Minister for Justice and Equality v Lanigan
ECLI:EU:C:2015:474 (C-237/15 PPU), which concerned an interpretation of the
European Arrest Warrant legislation (Council Framework Decision 2002/584/JHA
of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States, as amended by Council Framework Decision
2009/299/JHA of 26 February 2009).
In its judgment, the Court held that the mere expiry of the time limits for such
execution laid down in Article 17 of the Framework Decision cannot relieve the
executing Member State of its obligation to carry out the execution procedure and
adopt the decision on the execution of the warrant. A different interpretation would
run counter to the objective of accelerating and simplifying judicial cooperation
pursued by the Framework Decision and could compel the issuing Member State
to issue a second European arrest warrant in order to enable a new surrender
procedure to take place within the time limits laid down in the Framework Decision.
In addition, the Court held that Article 12 of the Framework Decision, on the
holding of the requested person in custody, read with Article 17 of the Framework
Decision and in the light of Article 6 of the Charter of Fundamental Rights, did not
preclude the requested person from being held in custody, in accordance with the
law of the executing Member State, even if the total duration of his detention
exceeded the time limits laid down in Article 17, provided that that duration was
not excessive in the light of the characteristics of the procedure followed in the
case in the main proceedings.
The Court stated that, if the executing authority decides to bring the requested
person’s custody to an end, it is required to attach to his provisional release any
measures it deems necessary so as to prevent him from absconding and to ensure
that the material conditions necessary for his effective surrender remain fulfilled

for as long as no final decision on the execution of the European arrest warrant
has been taken.

o Cahill et al, European Law, (5th ed., Oxford University Press/Law Society
of Ireland, 2011), chapter 4, pp. 110-111;
o Wyatt and Dashwood, European Union Law (5th ed., Thomson Sweet and
Maxwell, 2006), chapter 14;
o Fahey, Practice and Procedure in Preliminary References to Europe: 30
Years of Article 234 EC Case Law from the Irish Courts (First Law, 2007);
o Foster on EU Law ((7th ed., Oxford University Press, 2019), chapter 6,
pages 177-190;
o Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft
Berlin mbH [1997] ECR I 4961 (Case C-54/96);
o Foto-Frost [1987] ECR 4199 (Case 314/85);
o Foglia v. Novello [1980] ECR 745 (Case 104/79);
o CILFIT v. Ministry of Health [1982] ECR 3415 (Case 283/81);
o Statute of the Court of Justice (Protocol No.3);
o Rules of Procedure of the Court of Justice.

Chapter 9
Infringement Actions Against Member States
1. Required Reading
o Articles 258, 259 and 260 TFEU
o Chalmers, Davies and Monti, European Union Law, Text and Materials (4th
ed., Cambridge University Press, 2019), chapter 8
o Craig and de Búrca (7th ed.), chapter 13
o Hartley, Chapter 10.
2. Introduction (Articles 258-260 TFEU)

We saw in chapter 2 that Direct Actions comprise the second type of action before
the Court of Justice of the European Union, that direct actions start and finish in
Luxembourg and that direct actions include inter alia infringement proceedings by
the Commission against Member States pursuant to Article 258 TFEU and
proceedings by a Member State against another Member State for failure to fulfil
an obligation under the Treaty pursuant to Article 259 TFEU and actions by the
Commission against a Member State for failure to comply with a decision of the
Court of Justice pursuant to Article 260 TFEU.
A novel feature of the Treaty of Rome (the EEC Treaty) was that it set out a
mechanism by which EU Law would be enforced. It was envisaged that the
mechanism in the Treaty would be the principal method for EU law enforcement.12
Post-Lisbon, that mechanism is found in Article 258 TFEU13, the Treaty basis for
Commission action against Member States for failure to fulfil obligations under the
Treaties. The Commission is the guardian of the Treaties and pursuant to Article
17(1) TEU is tasked with inter alia ensuring that the provisions of the Treaties and
the measures adopted by the institutions thereto are applied. The Commission is
the EU law enforcer with the capacity to prosecute Member States for failure to
comply with EU law.14 Craig and de Búrca15 note (at 429):
Article 17(1) TEU entrusts to the Commission the task of ensuring and
overseeing the application of EU law “under the control of the Court of
Justice”. One crucial component of the Commission’s task is to monitor
Member State compliance and to respond to non-compliance.
12 This public enforcement mechanism is complimented by private enforcement of EU law rights

through direct effect.
13 Previously Article 226 EC and originally Article 169 EEC.
14 The Commission was examined in Chapter 2 of the EU Law Manual and students should refer
to that Chapter.
15 6th ed.

If the Commission considers that a Member State has failed to fulfil an

obligation under the Treaties, it shall deliver a reasoned opinion on the
matter giving the State concerned an opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period
laid down by the Commission, the latter may bring the matter before the
Court of Justice of the European Union. [Emphasis added.]
Article 258 TFEU affords the Commission a broad power to bring enforcement
proceedings against a Member State which it considers to be in breach of their
obligations under EU law.
Evans16 explains (at 443) that the provision contains a “novel procedure” as
traditionally in international law, enforcement of Treaty provisions was a matter to
be settled between the contracting states to the Treaty.
[[Article 258 TFEU], in contrast, enables an independent [EU] body, the

Commission, to invoke the compulsory jurisdiction of the European Court
against a defaulting Member State.
Article 258 TFEU has wide application and can be used in respect of acts or
omissions of Member States for breaches of obligations found in Treaties,
secondary legislation or CoJ judgments. The Treaties provide for various other
specific enforcement measures such as Article 108 (2) TFEU on State Aids and
Article 126 TFEU on excessive deficit procedure but Article 258 TFEU is by far the
most important centralised17 enforcement mechanism.
In addition, Article 259 TFEU18 provides for enforcement actions by one Member
State against another Member State. This type of proceedings is discussed later
in the Chapter.
Article 260 TFEU19 imposes an obligation on the Member States to comply with
judgments of the Court of Justice pursuant to Articles 258 or 259 TFEU. Originally
there was no sanction for failure to comply with a judgment of the Court of Justice
but the Maastricht Treaty (TEU, 1992) introduced the possibility of sanctions in the
forms of fines (lump sums or penalty payments). Post-Lisbon the Treaty provision
which provides for sanctions is Article 260 TFEU. This article is discussed below
under Heading 5.
16 Evans, “The Enforcement Procedure of Article 169 EC: Commission Discretion” (1979) 4 EL Rev
442.
17 In contrast to private enforcement.
18 Previously Article 227 EC and originally Article 170 EEC.
19 Previously Article 228 EC.

3. Initiation of Article 258 TFEU Proceedings
Article 258 TFEU proceedings are initiated either in response to a complaint or at
the Commission’s own initiative. The Commission does not have investigative
service but gains information from the press, from European Parliament questions
or petitions or from databases indicating that Member States have failed to notify
e.g. implementation of directives.
Citizens play a role in enforcement proceedings through complaints to the

Commission notifying the Commission of an alleged breach of EU Law by a
Member State. In this way Article 258 TFEU is regarded as contributing to
participatory democracy in the EU. From an individual’s perspective, the
advantage of making a complaint to the Commission is that there is no specified
procedure involved nor are financial resources required to be expended. For
example in Commission v. United Kingdom [1993] ECR I 4109 (Case C-56/90), a
complaint was made by means of a postcard from Blackpool complaining about
the quality of the bathing water. The Court of Justice found the UK to be in breach
of Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing
water.
However, Article 258 TFEU is not intended primarily to provide individuals with
redress but rather as “objective” means of ensuring Member State compliance with
EU law. Individuals have no say in determining whether the Commission initiates
actions against a Member State: Star Fruit v. Commission [1989] ECR 291 (Case
247/87). The Commission has sole discretion about whether to initiate
proceedings on foot of a received complaint. Following the making of a complaint
an individual has no further role in the Article 258 TFEU procedure and as
individuals are not party to Article 258 TFEU proceedings they cannot invoke a
right to a fair hearing: Petrie v. Commission (Case T-191/99). In that case the
General Court also upheld the refusal of access to documents for individuals in
infringement proceedings.
In Sweden and API v. Commission [2010] ECR I 8533 (Cases C-514, 528 and
532/07P), the CoJ considered Regulation (EC) No 1049/2001 of the European
Parliament and of the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents. Article 4(2) of that Regulation
provides an exception whereby the Commission may refuse access to documents
governing “protection of the purpose of inspections, investigations and audits”.
The CoJ considered that documents relating to Commission investigations in the
context of infringement proceedings would not be automatically covered by the
exception after the CoJ had delivered judgment in the case in question; rather,
access would have to be determined on a case by case basis.20
20 See, in particular, [130]-[136].

4. Operation of the Article 258 TFEU Infringement Procedure
4.1 Overview of the Article 258 TFEU Procedure
Article 258 TFEU proceedings comprise an administrative phase and a judicial

phase.
Craig and de Búrca21 state (at 434) that the “infringement procedure can be divided
into four distinct stages.” Of four stages, the first three comprise the administrative
phase and the fourth stage comprises the judicial phase. Craig and de Búrca set
out (at 434-435) the stages as follows:
i. The initial pre-contentious stage gives the Member State the

occasion to explain its position and the opportunity to reach an
accommodation with the Commission.
ii. If the matter is not formally clarified or resolved informally at this
stage, the state will be formally notified of the specific
infringement alleged by means of a letter from the Commission.
The state is usually given two months to reply, except in cases
of urgency, and the Commission normally decides within a year
to close a case or proceed.
iii. If, after an exchange with the state, the matter has not been
resolved, the Commission may proceed to the stage of issuing
a reasoned opinion. The reasoned opinion sets out clearly the
grounds on which the alleged infringement rests and marks the
beginning of the period within which the Member State must
comply, if it is to avoid the final stage.
iv. The final stage is the referral of the matter to the Court of
Justice. [Emphasis added.]
The aim throughout the early stages is to reach a negotiated settlement. Only if
agreement cannot be reached will the Commission institute legal proceedings.
The first stage involves the Commission contacting the authorities of the relevant
Member State and affords the Member State an opportunity to explain its position.
This is what Hartley refers to (at 302) as the “informal phase” during which “[t]he
Commission investigates the possibility of a breach and considers whether there
is sufficient evidence to justify the commencement of formal proceedings. This
informal investigation will be conducted with discretion and the Commission will try
to avoid press publicity. Informal discussions with the Member State will be held
in an attempt to ascertain the facts and to reach a settlement.”
The second stage will begin with a request to the Member State to submit its
observations, marking the beginning of a more formal phase. This “letter of formal
notice” will contain the specific allegation against the Member State and the time-
limit within which the Member State is expected to respond. The Commission will
attempt to reach an amicable settlement at this stage also.
21 6th ed.

It is only if the matter is not resolved to the satisfaction of the Commission at this
stage that it will move to the third stage and issue a reasoned opinion. The
reasoned opinion sets out the time period within which a Member State must
comply or face proceedings in the Court of Justice.
In the Commission’s 28th Annual Report on the Monitoring of EU Law (2010), it

was reported that approximately 24% of infringement proceedings were closed
before the sending of a formal notice and a further 49% before the sending of a
reasoned opinion.
The fourth stage is the Commission’s referral of the matter to the Court of Justice.
This is the judicial stage where the matter is brought before the Court of Justice
for a ruling. The Court of Justice considers the issue of the violation de novo and
is not bound by the view of the Commission.
It is now proposed to examine some aspects of the procedure in more detail.
4.2 The EU Pilot
In 2008, the Commission introduced EU Pilot, which was operational in all of the
Member States, as a method of communication between the Commission and
Member States to allow for correction of suspected breaches of EU law prior to the
first step being taken under the Article 258 TFEU infringement process. In cases
of urgency, the Commision issued a letter of formal notice without recourse to the
EU Pilot. The EU Pilot was a structured problem-solving process of dialogue
whereby if a Member State responded quickly to concerns it was offered the
opportunity of informal settlement. This scheme resulted in a reduced number of
infringement proceedings against Member States. Yet as part of the Commission’s
Better Results through Better Application Agenda22 it has now significantly reduced
the use of the EU Pilot programme save in exceptional circumstances where
recourse to EU Pilot is seen as useful in a given case.
4.3 The Significance of the Commission’s “Reasoned Opinion”
If the Commission considers that a violation has occurred, it will record this in a
“reasoned opinion.” The issuing of the reasoned opinion marks the end of the
administrative phase. The reasoned opinion is an important part of the pre-judicial
stage and is an important procedural safeguard for the Member States. It (together
with the letter of formal notice) is the means by which the Commission
communicates to the Member State the substance of the complaint against it and
specifies a time limit within which the violation must be remedied.
In pursuing the enforcement action before the Court of Justice, the Commission is
limited to the case made in the reasoned opinion: Commission v. Belgium [1988]
ECR 4343 (Case 298/86). The Commission cannot introduce new grounds outside
the reasoned opinion. The Court of Justice has stated that the subject matter of
an action brought under Article 258 TFEU is delimited by the pre-litigation
procedure: Commission v. Austria [1999] ECR I 7479 (Case C-328/96). The
22 Commission Communication [2017] OJ C18/02.

purpose of the pre-litigation phase has a dual purpose: to give the Member State
concerned an opportunity to comply with its obligations under EU law or to
effectively put forward its defence to the complaints made by the Commission:
Commission v. Austria [1999] ECR I 7479 (Case C-328/96). The time period is to
allow the Member State a period of grace within which to remedy the wrong.
In Commission v. Italy [1984] ECR 1633 (Case 50/83) (the scrap buses case) the
Commission, in the proceedings before the Court, sought a declaration that by
prohibiting the importation of used buses from another Member State which were
constructed more than seven years prior to the application for a road worthiness
test, Italy had infringed its free movement of goods obligations as set out in the
Treaty. However, the reasoned opinion objected to a ban on registration of old
buses (which could still be imported as scrap). The Court of Justice held that the
action could only be based on reasoned opinion. The Court of Justice determined
that Italy was in breach of the Treaty by not permitting the testing of buses from
other Member States which had been constructed more than seven years
previously.
In Commission v. Italy [1970] ECR 111 (Case 7/69) (Wool imports), subsequent to
the issuing of a reasoned opinion Italy enacted a law to remedy the breach. The
Commission was not satisfied that breach was remedied and maintained the
Article 258 TFEU action seeking further to rely on the inadequacy of the new law.
The Court of Justice refused to take account of the Commission’s case regarding
the inadequacy of the new law. The reasoned opinion is a procedural guarantee
to protect the Member State and allow it to answer the case against it.
A discrepancy between reasoned opinion and an Article 258 TFEU action may be
permissible where the change limits the reasoned opinion (i.e. is not a
disadvantage to the Member State): Commission v. Germany [1998] ECR I 5449
(Case C-191/95).
4.3.1 Persistent and On-going violations of the same kind

In Commission v. Ireland [2005] ECR I 3331 (Case C-494/01), Ireland was
prosecuted for breaches of EU environmental law on waste management (illegal
dumping). The illegal dumping of waste was carried out by private individuals, but
Ireland was prosecuted for failing to take adequate steps to prevent it. The Court
of Justice accepted that ordinarily fresh allegations not raised in the reasoned
opinion cannot be raised by the Commission before the Court of Justice but held
that an exception can be made where the allegations relate to conduct of the same
kind as that detailed in the reasoned opinion, or if the allegations relate to
behaviour that illustrates that the violation of which the State is accused in the
reasoned opinion “is a persistent and on-going violation of the same kind” as the
subject matter of the reasoned opinion. The Court of Justice stated:
38. It should be noted that in its application the Commission may clarify its
initial grounds of complaint provided, however, that it does not alter the
subject-matter of the dispute. In producing fresh evidence intended to
illustrate the grounds of complaint set out in its reasoned opinion, which
allege a failure of a general nature to comply with the provisions of a
directive, the Commission does not alter the subject-matter of the dispute

(see, by analogy, the judgment of 12 October 2004 in Case C-328/02
Commission v Greece, not published in the ECR, paragraphs 32 and 36).
39. In the present case, contrary to the Irish Government’s submissions,

although they were not referred to during the pre-litigation procedure the
facts relating to massive illegal dumping of, on occasions hazardous, waste
in County Wicklow, of which the Commission became aware after issue of
the reasoned opinion, could therefore properly be mentioned by the latter
in support of its application for the purpose of illustrating the failures of a
general nature to fulfil obligations raised by it.
Thus, exceptionally, where there is evidence of a persistent and on-going breach

the Commission’s reasoned opinion does not delimit the subject matter of the
infringement proceeding against the Member State.
Hartley considers (at 318) that this case was innovative as “...first, the Commission
brought proceedings for a whole lot of specific instances in one action; and,
secondly, that it asked the Court to find that Ireland violated Community law in
those specific instances, but also that it was guilty of a general and persistent
failure to comply with Community law.” The Court held that Ireland had failed to
take the necessary measures to ensure illegal dumping did not occur. The
significance of the judgment is that it is insufficient for Ireland to remedy the specific
instances of illegal dumping but that it will also have to show that it has taken the
necessary steps to enforce the Directive.
4.4 Commission discretion?
A question arises as to whether the Commission, if it considers that a violation has

occurred, has discretion not to proceed to institute infringement proceedings
against a Member State, in the Court of Justice, i.e. whether it has discretion to
proceed to the fourth judicial phase. Hartley considers (at 304) that:
...it would be unreasonable to hold that there is an absolute obligation on

the Commission to commence enforcement proceedings in every case
where a violation may have occurred. On the other hand, however, it would
be wrong to assume that there is no obligation at all. The true position
seems to be that the Commission has a discretion but is also subject to a
duty. The duty is take the most appropriate action to ensure that [EU] law
is obeyed; the discretion concerns the determination of what is most
appropriate in the circumstances.
In Commission v. Belgium and Luxembourg [1962] ECR 425 (Cases 2 & 3/62)
(Gingerbread case), Belgium and Luxembourg had sought a late derogation from
the Treaty provision preventing new or increased customs duties. The Member
States then unilaterally increased import duties on gingerbread after the coming
into force of the Treaty and before a decision on the derogation had been reached.
The Member States argued that the Commission was estopped from bringing
infringement proceedings in circumstances where a decision on the derogation
had not yet been taken. The CoJ held that the Commission was not estopped and
further criticised the Member States both for the late application for a derogation
and for failing to supply all the necessary information.

In Commission v. France [1971] ECR 1003 (Case 7/71), Advocate General
Roemer, in his Opinion stated that Commission discretion not to commence
enforcement proceedings could be exercised:
– Where the Commission was seeking informal amicable settlement

– Where slight breaches of EC law
– Where [now 258 TFEU] might inflame a politically sensitive situation
– Where there is a possibility that the Community provision itself might be
altered soon.
4.5 Article 258 TFEU proceedings admissible before the Court of Justice,
even after a breach is remedied
The Court of Justice has held Article 258 TFEU actions to be admissible even after
the breach is remedied. The rationale is that the Commission has a continued
interest is establishing that a breach occurred, there is a need to rule on legality of
short breaches and a need to establish the liability of a defaulting Member State.
An exception to this is where the Member State remedied the breach before the
expiry of the time-limit set out in the Commission’s reasoned opinion; Commission
v. Italy [1992] ECR I 2353 (Case C-362/90).
In addition, although in Francovich and Bonifaci v. Italy [1991] I ECR 5357 (Case
C-6/90), the Court of Justice had stated that it is not necessary to show successful
Article 258 TFEU action before state liability can be established, it can be a be a
useful means of showing illegality.
4.6 It is the Commission which determines the time-limits
The Commission is not under an obligation to institute proceedings within a set

time. The time-limits within which the Member States must comply with the various
stages of the Article 258 TFEU procedure are not set out in the Treaty. They are
imposed by the Commission and can vary according to the urgency of the matter.
In Commission v. Belgium [1988] ECR 305 (Case 293/85), the Court of Justice
determined that the proceedings were inadmissible because of the short periods
allowed to for Belgium to respond to the letter of formal notice (8 days) and to
comply with the reasoned opinion (15 days). The facts involved the Commission
alleging that Belgium was in breach of the Treaty provision prohibiting
discrimination on the grounds of nationality in charging fees to students who were
EU but not Belgian nationals, while Belgian nationals were not required to pay such
fees.
In Commission v. Austria [1999] ECR I 7479 (Case C-328/96), short periods of

seven days to respond to the letter of formal notice and 14 days to comply with the
reasoned opinion were justified by reference to the urgency of the matter. The
Court also stated that short periods may be justified where the Member State
concerned is fully aware of the Commission’s views long before the proceedings
start. The facts concerned an alleged breach by Austria of EC law in respect of the
award of public works contracts. The situation was considered to be urgent having
regard to the contracts of considerable value which were still in the process of

being awarded during the pre-litigation procedure on the basis of procedures which
the Commission considered to be contrary to EC law.
In Commission v. Ireland [1984] ECR 317 (Case 74/82), the Court of Justice held
that a five day period afforded to Ireland by the Commission’s reasoned opinion,
to amend legislation concerning restrictions on the importation of poultry which had
been on the Statute books since 1938 was unreasonable. However, the
enforcement action was admissible because the Commission had waited for
Ireland’s response and Ireland was found to be in breach of its Treaty obligations.
4.7 Effect of a determination by the Court of Justice that a Member State

is in breach of its obligations under the Treaties
Where a breach is found in Article 258 TFEU proceedings the Court of Justice
declares that the Member State has failed to fulfil its obligations under the Treaties.
The Court of Justice ruling does not have any effect on national law. The Member
State is required by Article 258 TFEU to take necessary measures to comply with
judgment. Prior to the Maastricht Treaty, the Court’s judgment was purely
declaratory. Failure to comply with an adverse Article 258 TFEU ruling may leave
a Member State open to the possibility of a follow-on Article 260 TFEU action for
failure to comply with a judgment of the CoJ.
4.8 The Effectiveness of Article 258 TFEU proceedings
The effectiveness of Article 258 TFEU proceedings is sometimes questioned. The

Commission has limited time and resources and exercises political discretion
regarding which infringements to pursue. Article 258 TFEU proceedings do not
always lead to compliance. The sanctions provided for in Article 260 TFEU may
act as a deterrent.
The disadvantages of Article 258 TFEU include that it comprises a diplomatic tool
and as such there is no guarantee action will be taken against a recalcitrant
Member State. They impose almost entire burden of policing EU Law on the
Commission. It is possible that there will be delay before Commission becomes
aware of an infringement. The procedure itself is time-consuming and a Member
State may use delaying tactics. Member States may choose to ignore judgments
against them, and this was especially the case prior to the Maastricht Treaty as
until then, there was no sanction for non-compliance. Finally, individuals only
benefit from Article 258 TFEU proceedings when a Member State changes its law
to comply with the judgment of the Court of Justice.
Finally, it is noteworthy that in Commission v. Poland ECLI:EU:C:2015:379 (Case

C- 29/14) that the CoJ outlined at para. 33 the obligations, not only of the
Commission, but of Member States in the course of infringement proceedings:
“33. The Court has already held that, while, in proceedings under Article
258 TFEU for failure to fulfil obligations, it is incumbent on the Commission
to place before the Court the information needed to enable the Court to
establish that an obligation has not been fulfilled, it is also incumbent on
the Member States, pursuant to Article 4(3) TEU, to facilitate the

achievement of the Commission’s tasks. Moreover, the information
concerning the transposition of a directive which the Member States are
obliged to provide to the Commission must be clear and precise, and it
must unequivocally indicate the legislative, regulatory and administrative
measures by which the Member State considers that it has fulfilled the
various obligations imposed on it by the directive. In the absence of such
information, the Commission is not in a position to determine whether the
Member State has genuinely and fully implemented the directive. The
failure of a Member State to fulfil that obligation, whether by providing
no information at all or by providing insufficiently clear and precise
information, may of itself justify recourse to the procedure under
Article 258 TFEU in order to establish that failure to fulfil the
obligation…” [Emphasis added.]
5. History of Article 258 TFEU, including the possibility of sanctions

pursuant to Article 260 TFEU
Initially, Article 258 TFEU proceedings were viewed by the Commission as a
weapon of last resort. In 1977, the Commission decided to pursue a more active
infringement policy. Initially, Member States post 1977, were quick to comply but
the procedure was trivialised and what Weiler termed “post-litigation non-
compliance” became common. This was because while the Treaty imposed an
obligation on Member States to take the necessary measures to comply with a
judgment of the Court finding that a Member State had failed to fulfil its obligation
under the Treaty of Rome, there was at that time no sanction for failure of a
Member State to comply with a decision of the Court of Justice. Indeed, as early
as 1975 the Court of Justice called absence of sanctions “a real lacuna in the
Treaty of Rome”.
For example in Commission v. France [1974] ECR 359 (Case 167/73) France was
found to be in breach of the Treaty for failure to amend a provision of its maritime
code requiring a proportion of the crew of a vessel to be French. Some twenty
years later in Commission v. France [1996] ECR I 1307 (C-334/94), France was
prosecuted for failure to comply with the earlier decision of the Court of Justice in
Commission v. France [1974] ECR 359 (Case 167/73). The Court of Justice held
that an administrative circular issued after the 1974 judgment and which contained
instructions for disapplying the national law was not an adequate method of
complying with Community Law. The Court of Justice held that by failing to take
the appropriate measures to comply with the earlier judgment France had failed to
comply with its obligations under Article 260 TFEU.
In 1990, the Commission adopted a stricter practice of issuing formal letters which
led to increase in reasoned opinions but also led to subsequent decrease in
referrals to CoJ for several years. The TEU (Maastricht Treaty) in 1992 introduced
a more coercive approach with punishment of post-litigation non-compliance in the
form of lump sums or penalty payments. The Maastricht Treaty (TEU, 1992)
introduced the possibility of sanctions for failure by a Member State to comply with
a judgment of the Court of Justice. The possible sanctions comprised fines (lump

sums or penalty payments) into the provision, which is now found at Article 260
TFEU.
Pre-Lisbon, infringement proceedings were brought in respect of the European

Community Treaty but post-Lisbon it is possible for the Commission to bring
infringement proceedings in respect of the Treaty on European Union and the
Treaty on the Functioning of the European Union.23
The Maastricht Treaty (the original TEU) introduced a mechanism, now found in
Article 260 TFEU (ex Artcile 228 EC), allowing the Commission to request the
CoJ to impose a lump sum or a penalty payment on a Member State which
had failed to comply with a previous judgment in Article 258 TFEU
proceedings. This mechanism is concerned with post-litigation non-compliance
by a Member State. This mechanism was actively used by the Commission. No
upper limit of penalty was specified. The Court of Justice was not bound by the
Commission recommendation regarding the penalty. In considering the penalty to
be recommended, the Commission considered the severity of the breach, the
duration of the breach and that the penalty should act as a deterrent to future
breaches.
The Court of Justice had found Greece to be in violation of its Community law
obligations in Commission v. Greece [1992] ECR I 2509 (Case C-45/91). Greece
did not remedy the breach and further proceedings were commenced. In
Commission v. Greece [2000] ECR 5047 (Case C-387/97), a case concerning the
disposal of toxic waste the Court of Justice stated:
92.…the basic criteria which must be taken into account in order to ensure
that penalty payments have coercive force and that Community law is
applied uniformly and effectively are, in principle, the duration of the
infringement, the degree of its seriousness and the ability of the Member
State to pay. In applying those criteria, regard should be had in particular
to the effects of failure to comply on public and private interests and to the
urgency of getting the Member State concerned to fulfil its obligations.
The Court of Justice imposed a penalty payment of €20,000 per day from the date
of service of the judgment. The Commission had proposed a higher fine. This
was the first time the Court of Justice had imposed a pecuniary penalty.
In Commission v. France [2005] ECR I 6263 (Case C-304/02) the Court of Justice
for the first time imposed both a lump sum penalty payment and a periodic
penalty payment on France for a breach of fisheries legislation which had been
condemned in as early as 1991 in Article 258 TFEU proceedings. France had
offered undersized fish for sale in contravention of conservation measures.
Pursuant to Arictle 260(2) TFEU, the Court of Justice is not bound to follow the
Commission’s advice with respect either to the type of penalty to be imposed or
the size of the penalty. The Court of Justice is bound not to exceed the amount
23Infringement proceedings are excluded for five years in respect of the Area of Freedom Security
and Justice. Also, the provisions of Common Foreign and Security Policy are largely excluded from
the Court of Justice’s Jurisdiction.

recommended by the Commission in respect of Article 260(3) TFEU. The
distinction between the two sub-paragraphs of Article 260 TFEU is discussed
further below.
5.1 Lisbon amendments (Article 260 TFEU, ex Article 228 EC)
Post-Lisbon the Treaty provision which provides for sanctions is Article 260 TFEU.
Article 260 TFEU contains some amendments when compared to the equivalent
pre-Lisbon provision (Article 228 EC).
Article 260 TFEU post-Lisbon provides:
1. If the Court of Justice of the European Union finds that a Member State
has failed to fulfil an obligation under the Treaties, the State shall be
required to take the necessary measures to comply with the judgment
of the Court.
2. If the Commission considers that the Member State concerned has not
taken the necessary measures to comply with the judgment of the
Court, it may bring the case before the Court after giving that State the
opportunity to submit its observations. It shall specify the amount of
lump sum or penalty payment to be paid by the Member State
concerned which it considers appropriate in the circumstances.
If the Court finds that the Member State concerned has not complied
with its judgment it may impose a lump sum or a penalty payment on it.
This procedure shall be without prejudice to Article 259.
3. When the Commission brings a case before the Court pursuant to

Article 258 on the grounds that the Member State concerned has failed
to fulfil its obligation to notify measures transposing a directive adopted
under a legislative procedure, it may, when it deems appropriate,
specify the amount of the lump sum or penalty payment to be paid by
the Member State concerned which it considers appropriate in the
circumstances.
If the Court finds that there is an infringement it may impose a lump

sum or a penalty payment on the Member State concerned not
exceeding the amount specified by the Commission. The payment
obligation shall take effect on the date set by the Court in its judgment.
Article 260 TFEU was amended by the Lisbon Treaty in two respects.
First, the procedure in Article 260(2) TFEU, which is concerned with post-litigation
non-compliance by a Member State, is shortened. Prior to Lisbon the procedure
involved a repeat of all of the Article 258 TFEU steps. Post-Lisbon, there is no
longer a requirement for a reasoned opinion. The Commission issues a letter of
formal notice and the Member State is afforded an opportunity to submit
observations. After this the Commission can refer the matter to the Court.

Secondly, a new provision was added: Article 260(3) TFEU which provides that
where enforcement proceedings are brought against a Member State in
circumstances where the Member State has failed to notify measures to transpose
a Directive, the Commission can go straight to the Court which can impose a
penalty at the same time as it finds that there is an infringement. The Commission
specifies a suggested amount, and the Court cannot exceed the amount specified
by the Commission. As noted above this restriction on the Court applies in respect
of 260(3) TFEU only and does not pertain in respect of Aricle 260(2) TFEU.
The Lisbon amendments are aimed at speeding up the procedure. It is only in the
case of non-transposition of a Directive that a penalty can be imposed by the Court
at the same time as a breach is found, i.e., in the first set of proceedings against a
Member State.
In Commission v Belgium (Case C-543/17; EU:C:2019:573) the Court clarified that

Article 260(3) applied not only in respect of a complete failure to notify the
Commission of transposition measures in respect of EU legislation, but also
applied to cases of partial failure to communicate transposition measures. Thus
fines are automatically payable by Member States at the time of infringement
proceedings in such cases, thereby placing additional pressure on Member States
to ensure timely and accurate transposition EU law.
As regards the notification itself, the Court held that it must contain sufficiently clear
and precise information on the substance of the national rules which transpose a
directive, and must indicate unequivocally the laws, regulations and administrative
provisions by means of which the Member State considers that it has satisfied the
various requirements imposed on it by that directive (para. 51). Furthermore, in
order to satisfy the obligation of legal certainty and to ensure the transposition of
the provisions of that directive in full throughout its territory, the Member States are
required to state, for each provision of the directive, the national provision or
provisions ensuring its transposition. (para.59)
As to the extent of the failure falling within Article 260(3) TFEU, the Court warned
that “…The failure of a Member State to fulfil that obligation, whether by providing
no information at all, partial information or by providing insufficiently clear
and precise information, may of itself justify recourse to the procedure under
Article 258 TFEU in order to establish the failure to fulfil the obligation…” (para.
51).
Finally, as the purpose of Article 260(3) TFEU, the Court stated that “… the
objective pursued by the introduction of the system set out in Article 260(3) TFEU
is not only to induce Member States to put an end as soon as possible to a breach
of obligations which, in the absence of such a measure, would tend to persist, but
also to simplify and speed up the procedure for imposing pecuniary sanctions for
failures to comply with the obligation to notify a national measure transposing a
directive adopted through a legislative procedure, it being specified that, prior to
the introduction of such a system, it might be years before a pecuniary sanction
was imposed on Member States which had failed to comply timely with an earlier
judgment of the Court and failed to respect their obligations to transpose a
directive.” (para. 52)

The CJEU contends that the aim of the provision would be compromised if the
Commission were capable of imposing a financial penalty on a Member State
under Article 260(3) TFEU only where the Member State failed to notify it of any
transposition measure (para. 53).
In other circumstances, sanctions in the forms of fines are imposed for post-
litigation non-compliance pursuant to Article 260(2) TFEU.
The practical implications of this judgment cannot be overstated. Member States

are now required to provide sufficiently clear and precise information on
transposing measures. The Commission will no longer accept “bare notifications”,
i.e., notifications which do not indicate unambiguously for each provision of a
directive corresponding national transposition provision. The only exception is
where such “bare notifications” are wholly self-explanatory. Where such
information is not provided by Member states, the Commission will assert that no
measures have been notified and proceed with an infringement pursuant to Article
260 (3) TFEU. If Member States provide required information, the Commission will
only pursue “non-communication” infringements if it is clear that no corresponding
transposition measure exists for a self-standing obligation of a directive. Finally,
the Commission will decide whether there is a manifest gap in transposition, but it
will be obliged to provide a well-substantiated explanation to Member States for
that decision.
5.2 The Commission’s method to calculate proposed penalties
The Commission’s method for calculating proposed penalties is set out in

Commission Communication — Modification of the calculation method for lump
sum payments and daily penalty payments proposed by the Commission in
infringements proceedings before the Court of Justice of the EU (C/2019/1396).
The Commission examines factors such as the capacity to pay of the Member
State concerned; the n-factor’ combining the seriousness of the infringement, and
its duration and ensuring that, while sanctions act as a deterrent, they are also
proportionate.
The 2019 communication set a revised “minimum lump sum” and “special n factor”
for Member States, in the calculation of fines. A lump sum is a one-off fine for
failure to comply. Ireland’s minimum lump sum is set at €1,181,000.
A penalty payment is a daily fine that the Member State must pay for each extra
day that EU law is being breached from the date of the Article 260 TFEU judgment
of the Court of Justice.
The “special n factor” reflects the average of GDP and number of representatives
in the European Parliament and is used in the calculation of the penalty payment.
Ireland’s special “n factor” is 0.46. There are no upper limits for the penalty/fine
that the Court of Justice can apply.
The Court of Justice is not bound to follow the suggestion of the Commission on
how much to fine (cap for non-transposition of directives).

In Commission v. France (Case C-304/02), Court of Justice for the first time
imposed both a lump sum penalty payment and a periodic penalty payment on a
Member State24.
On foot of the Grand Chamber’s judgment in Commission v. Ireland and Romania

(C-549 & C-550/18) the Court established that once the time laid down in a
directive for transposition has passed, Member States are at risk of receiving a
lump sum penalty even if it subsequently transposes the directive during course of
infringement proceedings.
The Court upheld the Commission’s claim by ruling that on the expiry of the
deadline in the reasoned opinion, Romania and Ireland had not adopted the
national measures transposing Directive 2015/849 62 and had failed to notify such
measures to the Commission, thereby failing to fulfil their obligations under that
directive. It also found that the obligation on Member States to notify measures
transposing a directive at Article 260(3) TFEU was applicable.
Romania and Ireland had disputed the application of the system of penalties in
Article 260(3) TFEU asserting that the Commission made an application for a lump
sum to be imposed that was unjustified and disproportionate in the light of the facts
and the objective of that financial penalty. They asserted that the Commission had
failed to provide a detailed statement of reasons, on a case-by-case basis, for its
decision to request the imposition of such a penalty in those cases.
The Court held that the obligation to notify measures transposing a directive, within
the meaning of Article 260(3) TFEU, refers to the obligation of the Member States
to provide sufficiently clear and precise information on the measures transposing
a directive. Compliance with that obligation required the Member States to state,
for each provision of the directive concerned, the national provision or provisions
ensuring its transposition.
The Court held that the Commission had established that Romania and Ireland
had failed to notify the measures transposing Directive 2015/849 within the period
prescribed in the reasoned opinion and that the failure to fulfil obligations fell within
the scope of Article 260(3) TFEU.
It was held that Commission is not required to state reasons on a case-by-case

basis for its decision to seek the imposition of a financial penalty under Article
260(3) TFEU. The conditions for applying Article 260(3) TFEU could not be more
restrictive than those governing the implementation of Article 258 TFEU, as Article
260(3) TFEU is only an ancillary mechanism of the infringement proceedings,
within the Commission’s discretion, and is not for review by the Court.
The court held that the absence of a statement of reasons did not affect the
procedural guarantees of the Member State, since when it imposes such a penalty,
the Court is obliged to state reasons.
24See also the Grand Chamber’s judgment in Commission v. Ireland (C-261/18) (Derrybrien
windfarm).

The Court clarified that the Commission is still required to state reasons for the
nature and the amount of the financial penalty sought, taking into account the
guidelines which it has adopted, as in the context of proceedings brought under
Article 260(3) TFEU, the Court has only a limited power to assess. Where the Court
finds that there is an infringement, the Commission’s proposals are binding on it
as to the nature of the financial penalty which the Court may impose and the
maximum amount of the penalty which it may set.
On the imposition of a lump sum, the Court pointed out that the objective pursued
by the introduction of the system set out in Article 260(3) TFEU is not only to induce
Member States to put an end as soon as possible to a breach of obligations but
also to simplify and speed up the procedure for imposing financial penalties for
failures to comply with the obligation to notify a national measure transposing a
directive adopted through a legislative procedure.
The Court held that the Commission’s application seeking the imposition of a lump
sum could not be dismissed as disproportionate solely because it concerned a
failure to fulfil obligations which came to an end at the time of the Court’s
examination of the facts, as the imposition of a lump-sum payment is based on the
assessment of the effects on public and private interests of the failure of the
Member State concerned to comply with its obligations, in particular where the
breach has persisted for a long period.
The Court held (at [79]):
. . . it must be found that, notwithstanding the fact that Ireland cooperated

with the Commission services throughout the pre-litigation procedure and
kept them informed of the progress of the transposition of Directive
2015/849, all the legal and factual circumstances culminating in the breach
of obligations established — namely, the fact that, as the date on which the
present action was brought, only one transposition measure covering just
the provisions of the first subparagraph of Article 30(1) of that directive had
been notified and the fact that the final measures transposing Directive
2015/849 entered into force one week before the hearing — indicate
that if the future repetition of similar infringements of EU law is to be
effectively prevented, a dissuasive measure must be adopted, such
as a lump sum payment (see, to that effect, by analogy with Article 260(2)
TFEU, judgments of 11 December 2012, Commission v Spain, C 610/10,
EU:C:2012:781, paragraph 142, and of 4 December 2014, Commission v
Sweden, C 243/13, not published, EU:C:2014:2413, paragraph 63).”
On calculation of the lump sum, CJEU held it was for the Court to fix the amount
of the lump sum which may be imposed on a Member State pursuant to Article
260(3) TFEU, in an amount appropriate to the circumstances and proportionate to
the failure to fulfil obligations. Relevant considerations in that respect include
factors such as the seriousness of the failure to fulfil obligations, the length of time
for which the failure has persisted and the relevant Member State’s ability to pay.
Although Romania and Ireland had since put an end to the failure to fulfil
obligations, it existed on the expiry of the period prescribed in the reasoned
opinions, with the result that the effectiveness of EU law was not ensured at all

times. Furthermore, the duration must be assessed by reference to the date on
which the Court assesses the facts, i.e. the date of conclusion of the proceedings.
The relevant date for evaluating the duration of the infringement was held not to
be the date of expiry of the period prescribed in the reasoned opinion (used for
determining the daily penalty payment to be imposed), but the date of expiry of
the transposition period laid down in the directive in question so as to
encourage Member States to transpose directives within the deadlines set by the
EU legislature and to ensure the full effectiveness of EU legislation.
The Court held that any other approach would be tantamount to calling into
question the effectiveness of the provisions of directives setting the date on which
the measures transposing those directives must enter into force and to granting an
additional transposition period, whose duration would vary according to the speed
with which the Commission initiated the pre-litigation procedure, without taking into
account the duration of that period when evaluating the duration of the failure to
fulfil the obligations at issue. Failure to fulfil obligations by Romania and Ireland
had persisted for more than two years.
Finally, on the ability to pay of the Member State concerned, the Court pointed out
that it is necessary to take account of recent trends in that Member State’s gross
domestic product (GDP) at the time of the Court’s examination of the facts.
Consequently, having regard to all the circumstances of the cases at issue and in
the light of the Court’s discretion under Article 260(3) TFEU, the Court ordered
Romania and Ireland to pay the Commission a lump sum of €3 million and €2
million respectively.
6. The relationship between public and private enforcement

mechanisms
Articles 258-260 TFEU comprise the public enforcement mechanism while private
enforcement is secured through the operation of direct effect. In other words,
direct effect provides an alternative mechanism for enforcement of EU law against
national governments.
In Van Gend en Loos [1963] ECR 1 (Case 26/62) a number of Member States
argued that proper method of ensuring compliance with EC Law was that
enforcement proceedings should be taken against the State. The Court of Justice
rejected this argument stating:
In addition the argument based on [258 and 259 TFEU)] put forward by
…three Governments…is misconceived. The fact that these Articles of the
Treaty enable the Commission and the Member States to bring before the
Court, a State which has not fulfilled its obligations does not mean that
individuals cannot plead these obligations should the need arise, before a
national court…

The vigilance of individuals concerned to protect their rights amounts to an
effective supervision in addition to the entrusted by [ex Articles 258 and
259 TFEU)] to the diligence of the Commission and the Member States.
Craig and de Búrca25 state (at 406):
The most common complaint in enforcement proceedings against Member

States is their failure to implement directives correctly or at all. This helps
to explain the ECJ’s direct effect doctrine, since the result was in part to
bypass the problem of national non-implementation of directives by
encouraging their direct enforcement at the national judicial level. In this
way it forms a supplementary and frequently more effective method of
enforcement than the action provided for in [Article 258 TFEU].
The two procedures are however distinct. This has been emphasised in the case-
law of the Court of Justice. In Commission v. Germany [1985] ECR 1661 (Case
29/84) the CoJ held that the direct effect of a Community provision was not a
defence to an Article 258 TFEU action for failure to implement a Directive and
rejected the argument of the German government that it could rely on the direct
effect of the principle of non-discrimination on the grounds of nationality and
therefore a directive to give effect to this principle did not require specific legislative
enactment. More recently in Commission v. United Kingdom [2006] ECR I 3969
(Case C-508/03) the Court of Justice stated that the existence of remedies
available through the national courts cannot prejudice the bringing of an action
under Article 258 TFEU since the two procedures have different objectives and
effects.
7. Types of Breach
Article 258 TFEU does not set out what constitutes a breach of duty by a Member
State. Proceedings are brought where a Member State has failed to fulfil an
obligation under the Treaties. What constitutes such a violation? It clearly covers
a violation of one of the Treaties (TEU and TFEU).
Article 258 TFEU proceedings can be brought in respect of omissions or actions

on the part of a Member State. A common type of breach on the part of Member
States is the failure to implement directives. Examples of other types of breaches
for which Member States have been prosecuted include:
o inadequate implementation of EU Law: Commission v. France [1974]

ECR 359 (Case 167/73) (French crew);
o breach of the EU’s external competence: Commission v. UK &
others [2002] ECR I 9855 (Cases C-466-476/98);
o breach of Treaty provisions: Commission v. Germany [1987] ECR I-
1227 (Case 178/84) (beer purity requirement in breach of Treaty
provision on free movement of goods);
o domestic legislation contrary to EU Law: Commission v. UK [1991]
ECR I-4585 (C-246/89);
25 3rd ed.

o systemic and persistent breaches: Commission v. Ireland [2005]
ECR I 3331 (Case C-494/01);
o failure of a Member State to comply with the duty of loyal co-
operation in Article 4(3) TEU: Commission v. Netherlands [1982]
ECR 1791 (Case 96/81); Commission v United Kingdom (C-391/17,
EU:C:2019:919) and Commission v Netherlands (C-395/17,
EU:C:2019:918).
o failure to prevent action which frustrates an EU objective:
Commission v. France [1997] ECR I 6959 (Case C-265/95) (Spanish
strawberries) in which French authorities stood by and observed
Spanish goods being destroyed by French farmers as they came
across the border;
o general and persistent breaches of EU law; and
o breaches by institutionally independent bodies; Commission v.
Italy [2003] ECR I -14637 (Case C-129/00).
The above are only examples and it must be noted that the Commission has a
broad mandate.
A breach of EU law can arise from the action or inaction of any part of the State.
For many years there was academic discussion as to whether a Member State
might be subject to an enforcement action in respect of a breach of EU law by a
national court. Hartley gives examples (at 300) of possible violations by a national
court; “they could refuse to give direct effect to a provision of [EU] law; they could
refuse to make a reference to the Court of Justice even where bound to do so
under the third paragraph of [Article 267 TFEU)]; or they could refuse to accept
that [EU] law overrides national law in the event of conflict.” Writing before the
issue was definitively decided, Hartley considered that it would be possible to bring
an enforcement action against a Member State for a violation by a national court.
He notes (at 301), “there have been several occasions on which such violations
occurred.”26
In R. v. Bouchereau [1977] ECR 1999 (Case 30/77), Advocate General Warner

was of the opinion that it would be possible to bring Article 258 TFEU proceedings
against a Member State for breaches of EU law by a national court in certain
circumstances:
It is obvious on the other hand that a Member State cannot be held to have
failed to fulfil an obligation under the Treaty simply because one of its courts
has reached a wrong decision. Judicial error, whether due to a
misapprehension of facts or misapprehension of the law, is not a breach of
the Treaty. In the judicial sphere, [Article 258 TFEU] could only come into
play in the event of a court of a Member State deliberately ignoring or
disregarding Community law.
In 2004, the Commission issued a reasoned opinion against Sweden citing the
failure of its Supreme Court to make preliminary references under Article 267
TFEU and the lack of any laws governing the making of such references.
26In this respect he refers back to chapter 8 of his textbook, the chapter dealing with the national
response to Supremacy.

Legislation was introduced in Sweden before the matter progressed to
infringement proceedings. In September 2012, it was reported in The Irish Times27
that French lawyers are to make a complaint to the European Commission over
the decision not to extradite an individual in connection with the death of a French
national in Ireland. The lawyers suggest that the Supreme Court interpretation of
the legislation governing the European Arrest Warrant in Ireland is in breach of the
EU Treaties. The aim of the complaint is that the European Commission would
bring proceedings against Ireland for infringement of the Treaties owing to an
interpretation of the Supreme Court.
More recently, the CoJ has made it clear that Commission may prosecute Member
States for interpretations of national law by national courts which are inconsistent
with EU law.
In Commission v. Italy [2003] ECR I -14637 (Case C-129/00) the CoJ held that a
Member State could be liable for breaches by institutionally independent bodies in
a case in which the highest Italian civil court had interpreted Italian law relating to
customs duties in a manner which was not consistent with EU law. The CoJ
discussed (at [29]-[33]) the issue as one where the national legislation, being the
subject of different national judicial constructions, rendered the legislation not
sufficiently clear to ensure its application in compliance with EU Law.
In his Opinion in Commission v. Spain [2010] ECR I 3429 (Case C-423/07),

Advocate General Mengozzi, explained the case Commission v. Italy [2003] ECR
I -14637 (Case C-129/00), in the following terms:
57. Moreover, for the purposes of a case concerning alleged failure to fulfil
obligations, the State is the only reference point for the Court, and the State is
held to be responsible for all breaches of Community law attributable to it, even
if they are in fact caused by constitutionally independent bodies, for example.
In that, even a judicial interpretation supported by the supreme court of a
Member State has been held by the Court to be in breach of Community law.28
Finally, inA.B. and Ors v. Krajowa Rada Sądownictwa (Case C-824/18), the Court
of Justice made significant statements on the duty of sincere co-operation on
Member States per Article 4(3) TEU.:
95 . . . while it is in principle permissible for a Member State, for example,

to amend its domestic rules conferring jurisdiction, with the possible
consequence that the legislative basis on which the jurisdiction of a national
court which has made a reference for a preliminary ruling has been
established will disappear, or to adopt substantive rules that have the
incidental consequence of rendering the case in which such a reference
was made devoid of purpose, a Member State cannot, however, without
infringing Article 267 TFEU, read in conjunction with the third subparagraph
of Article 4(3) TEU, make amendments to its national legislation the
27 MacCormaic and Roche, “French lawyers to make complaint over Bailey appeal”, The Irish
Times, September 12, 2012.
28 Citing Commission v. Italy [2003] ECR I -14637 (Case C-129/00).

specific effects of which are to prevent requests for a preliminary ruling
addressed to the Court from being maintained after they have been made,
and thus to prevent the latter from giving judgment on such requests, and
to preclude any possibility of a national court repeating similar requests in
the future.
7.1 Infringement Proceedings against Ireland
In Commission v. Ireland [2006] ECR I 4635 (Case C-459/03), Ireland was

prosecuted for choosing to bring proceedings against the UK in respect of a
nuclear recycling plant to a tribunal under the International Convention on
the Law of the Sea. The proceedings involved an interpretation of EU law and
the CoJ held that Ireland was in breach of EU law and considered that the EU legal
system might be adversely affected through the invoking of an alternative
jurisdiction.
In Commission v. Ireland [2011] ECR I 140 (Case C-82/10), Ireland was found to
have failed to fulfil its obligations under a number of insurance directives by
failing to apply those directives in a non-discriminatory manner to all
insurance undertakings. The infringement proceedings resulted from the
continued exemption of the VHI from the application of EU legislation on direct
insurance other than life assurance.
In Commission v. Ireland [2011] ECR I 56 (Case 431/10), Ireland was found in

breach of its obligations to transpose Council Directive 2005/85/EC of 1
December 2005 on minimum standards on procedures in Member States for
granting and withdrawing refugee status.
Commission v. Ireland [2012] ECR I 834 (Case C-279/11), concerned an allegation

that Ireland had failed to comply with the decision of the CoJ in Commission v.
Ireland [2008] ECR I 158 (Case C-66/06). The earlier case had related to a trial
salmon farm on the Kenmare estuary in County Kerry. Ireland was found to have
infringed EU law through its deficient transposition of a Directive and, in
particular, by not ensuring that projects likely to have a significant impact on the
environment were subject to development consent and assessment with regard to
environmental impact assessments before the projects were permitted to go
ahead. In failing to comply with that judgment Ireland was found to be in breach
of its Treaty obligations and in particular Article 260 TFEU. Ireland had fully
complied with the judgment by late 2011, approximately three years after the
judgment in C-66/06. Ireland was ordered to pay a lump sum payment of €1.5
million into the EU’s own resorces fund. The Court took into account Ireland’s
reduced ability to pay in the context of the economic crisis in arriving at that figure.
Commission v. Ireland [2012] ECR I 827 (Case C-374/11), concerned an allegation

that Ireland had failed to comply with the decision of the CoJ in Commission v.
Ireland [2009] ECR I 172 (Case C-188/08). The facts related to domestic waste
water being discharged through sewage tanks in the countryside. In the earlier
decision, Ireland had been found in breach of its obligations under Directive 75/442
by failing to adopt (except in County Cavan) all the laws, regulations and
administrative provisions necessary to comply with Articles 4 and 8 of
[Directive 75/442] as regards domestic waste waters disposed of in the countryside

through individual waste water treatment systems. The CoJ determined that
Ireland had failed to comply with the earlier judgment and therefore had failed to
comply with Article 260(1) TFEU. The Court imposed a penalty payament of
€12000 per day between the date of the earlier judgment and compliance. The
Court imposed a lump sum payment of €2 million. The monies were ordered to be
paid to the EU own resources account and Ireland was required to pay the costs.
In calculating the penalty payment the Court (at [44]) took into account Ireland’s
reduced ability to pay in the context of the economic crisis.
In Commission v. Ireland (Urban waste water) Case C-427/17,

ECLI:EU:C:2019:269 it was held by the CJEU that Ireland has failed to fulfil its
obligation under Articles 3(1) and (2), Article 4(1) and/or (3) read in conjunction
with Article 10, Articles 5(2) and (3) and Article 12 of Directive 91/271 concerning
urban waste water treatment by
• not ensuring that the waters collected in a combined urban wastewater

and rainwater system were retained and conducted for treatment in
compliance with the requirements of that directive;
• by not putting in place secondary or equivalent treatment;
• by not ensuring that urban wastewater entering collecting systems from

various locations, before discharge into sensitive areas, was made
subject to more stringent treatment;
• by not ensuring that the disposal of wastewater from urban waste water
treatment plants in various towns and cities around the country.
Finally, in Commission v. Ireland (Derrybrien) (C-261/18; EU:C:2019:955) The

CJEU found that by failing to take all measures necessary to comply with.an earlier
Article 258 TFEU judgment in Commission v. Ireland (Case C-215/06,
EU:C:2008:380), delivered in 2008 - insofar as the Court had held in the 2008
judgment that Ireland had infringed Directive 85/337 following the construction of
a wind farm at Derrybrien, Co. Galway without a prior environmental impact
assessment (EIA) having been carried out - that Ireland failed to fulfil its obligations
under Article 260(1) TFEU.
Following the 2008 judgment, Ireland had introduced a regularisation procedure,

substitute consent under the Planning and Development Act 2000, to enable the
operator of the Derrybrien wind farm to comply with the requirements of Directive
85/337.
However, as the wind farm operator had not undergone that procedure and the
procedure had not been initiated by the Irish authorities of their own initiative, the
Commission brought a second action for failure to fulfil obligations before the
Court.
Ireland, for its part, stressed the efforts it had made during a lengthy pre-litigation
phase to resolve matters, reporting to the Commission that the wind farm operator
had indicated its willingness to undertake an unofficial, non-statutory, EIA in

respect of that wind farm which would conform to the requirements of Directive
85/337, and providing the Commission with a concept document which set out a
road map for the non-statutory EIA of the wind farm. Ireland had also agreed to
send the Commission the draft memorandum of understanding which would be
concluded between the wind farm operator and the Minister for Environment
providing for an agreement on the carrying out of a non-statutory environmental
review.
Yet, the Commission maintained that those documents did not enable Ireland to
fulfil its obligations. Despite discussions on a resolution over the course of several
years, and notwithstanding the signature of the concept document, the
Commission had proceeded to take enforcement proceedings.
At hearing, Ireland argued that it was not in a position to apply the regularisation
procedure of its own initiative, as the local authorities, which are independent in
carrying out their functions under Irish planning law, were responsible for putting
an end to that procedure.
Furthermore, Ireland stressed that the wind farm operator was refusing to apply
the regularisation procedure provided for in Part XA of the Act of 2000 and that
neither national nor EU law made provision for Ireland to compel the operator to
make the application- while the operator was a wholly owned subsidiary of a semi-
public sector entity that was 90% owned by Ireland, the wind farm operator was
independent as regards the daily management of its affairs.
Ireland also maintained that the the principles of legal certainty, the non-retroactive
effect of laws and of the protection of legitimate expectations precluded the
revocation of an administrative decision which because of the expiry of the period
for bringing an action, could no longer be the subject of a direct application to a
court and had, therefore, become final.
Yet the Court rejected the various arguments put forward by Ireland in its defence
- Ireland could not rely on national provisions limiting the possibilities of
commencing the regularisation procedure introduced in order to ensure that the
2008 judgment was complied with. National authorities were required to remedy
the failure to carry out an impact assessment and the obligations stemming from
Directive 85/337 also applied to the wind farm’s operator, since it was controlled
by Ireland. Although the consents for the construction of the wind farm at
Derrybrien had become final, Ireland could not rely on legal certainty and legitimate
expectations derived by the wind farm’s operator from acquired rights in order to
avoid the consequences stemming from the objective finding that there had been
a failure to comply with Directive 85/337.
The Court found in favour of the Commission, stating, inter alia, that Member
States are required, in accordance with the principle of sincere cooperation at
Article 4(3) TEU, to take all measures necessary to remedy the failure to carry out
an EIA, in particular, to carry out an assessment for regularisation purposes, after
a plant has entered into operation. Such an assessment must take into account
not only the future impact of the plant at issue, but also the environmental impact
from the time of its completion. The assessment may result in the consents which

were granted in breach of the obligation to carry out a prior assessment being
amended or withdrawn.
Notwithstanding the legislative reform introducing a regularisation procedure, the

Court held Ireland had failed to carry out a new EIA of the wind farm, and therefore
failed to have regard to the 2008 judgment.
The Court stated that projects in respect of which the consent could no longer be
subject to challenge before the courts could not be purely and simply deemed to
be lawfully authorised as regards the obligation to assess their effects on the
environment.
In the light of the gravity and duration of the failure, as well as Ireland’s ability to
pay, the Court ordered Ireland to pay the European Commission a lump sum of €5
million as well as a penalty payment of €15,000 per day from the date of delivery
of the Article 260 TFEU judgment, which would continue to run until the date of
compliance with the 2008 judgment.
8. Potential Defences of Member States

Defences to infringement proceedings on the part of Member States rarely
succeed.
Member States have attempted to defend Article 258 TFEU actions them on the
grounds that other Member States are in also breach but without success;
Commission v. UK [1991] ECR I 3533 (Case C-146/89).
Member States have attempted to rely on the defence of force majeure. In

Commission v. Belgium [1970] ECR 237 (Case 77/69), dissolution of Parliament
was held not to be a good defence to inaction. The facts related to a discriminatory
tax on imported wood. The Belgian Government argued that its best endeavours
to secure the amendment of the offending legislation had been frustrated by the
dissolution of Parliament. The Court of Justice stated:
. . . the liability of a Member State under [Article 258 TFEU] arises whatever
the agency of the State whose action or inaction is the cause of the failure
to fulfil its obligations, even in the case of a constitutionally independent
institution.
In Commission v. Italy (Statistical returns) [1985] ECR 2629 (Case 101/84), the
Court of Justice stated that the fact that data was destroyed in bomb attack might
justify failure to comply with a directive but only during time needed to overcome
the difficulties caused by the event. The Court of Justice stated that although it
was true that bomb attack on a data processing centre of the Italian Ministry of
Transport which took place before 18 January 1979, may have constituted force
majeure and created insurmountable difficulties, the effects could only have lasted
a certain time, the time which would be necessary for an effective administration
showing reasonable diligence to have the equipment replaced and to prepare the
data. Italy could not therefore rely on the event to justify its continuing failure to
comply with its Community obligations, years later.

Member States have put forward a defence of lack of deliberate wrongdoing.
In Commission v. Belgium [1983] ECR 467 (Case 301/81), the Court of Justice
stated looks at whether there has been an infringement, not whether there has
been deliberate wrongdoing. Its analysis is objective.
Member States have also sought to put forward the defence that Community
measures on which infringement proceedings are based are illegal. In Commission
v. Greece [1988] ECR 3611 (Case 226/ 87), Greece contested infringement
proceedings on basis that a Commission Decision on which the Article 258 TFEU
proceedings was based was unlawful. The Commission Decision, adopted under
Article 110 TFEU, stated that Greek legislation on public-sector insurance was
incompatible with the (EC) Treaty. The CoJ held that a Member State cannot plead
unlawfulness of a Decision addressed to it in an Article 258 TFEU action. The
implication is that the Member State should have judicially reviewed the Decision
pursuant to Article 263 TFEU and that it is not permissible to challenge the validity
of a Decision within Article 258 TFEU proceedings. Craig and de Búrca consider
that “a plea of illegality might be a defence to an action under Article [258 TFEU]
where the [EU] measure was so gravely flawed as to be legally ‘non-existent’, or
where the earlier measure was not a decision addressed to the Member State in
question, but a regulation, the illegality of which might not have been apparent to
the Member State until the Commission brought infringement proceedings. It may
also be possible for the illegality of the decision to be pleaded in an extreme case
where the decision infringes a principle of a constitutional nature.”29
In Commission v. Portugal (Case C-398/14) the Court did not accept the defence
advanced by Portugal, namely, that the treatment plants at issue were under way
or scheduled in order to comply with the obligations of Article 4 of Directive
91/271 as Portugal was not in compliance with the obligations arising under Article
4 of Directive 91/271 on the expiry of the period granted to the Portuguese
Republic for complying with the requirements of that article.
9. Enforcement Proceedings post-Lisbon

Post-Lisbon, ex Articles 226, 227 and 228 EC are now found in Articles 258, 259
and 260 TFEU. The wording of Article 258 TFEU and ex Article 226 EC is almost
identical. Similarly, Article 259 TFEU reflects Article 227 EC.
There are changes to ex Article 228 EC which became Article 260 TFEU. The
Treaty of Lisbon speeds up the system of pecuniary sanctions (lump sum and/or
penalty payment) in the event of non-compliance with a judgment establishing a
failure to fulfil obligations; Article 260(2) TEFU. It also enables the Court of Justice
to impose pecuniary sanctions, once the initial judgment establishing a failure to
fulfil obligations has been given, in the event of a failure to notify to the Commission
national measures transposing a directive; Article 260(3) TEFU).
29 Page 452.

10. Article 259 TFEU
Article 259 TFEU provides for enforcement actions by one Member State against
another Member State. Article 259 TFEU provides:
A Member State which considers that another Member State has failed to
fulfil an obligation under the Treaties may bring the matter before the Court
of Justice of the European Union.
Before a Member State brings an action against another Member State for
an alleged infringement of an obligation under the Treaties, it shall bring
the matter before the Commission.
The Commission shall deliver a reasoned opinion after each of the States
concerned has been given the opportunity to submit its own case and its
observations on the other party’s case both orally and in writing.
If the Commission has not delivered an opinion within three months of the
date on which the matter was brought before it, the absence of such an
opinion shall not prevent the matter from being brought before the Court.
Such actions are rare with Member States preferring to leave it to the Commission
to institute legal proceedings rather than take action themselves. The explanation
for why this procedure is rarely used is ordinarily explained by reference to political
sensitivity.
Both Member States must be heard and the Commission plays the role of
umpire. It seems that the complainant Member State may bring case to CoJ even
where the Commission takes view that there has been no breach. The burden of
proof is on the complainant Member State and the Commission may intervene in
favour of one Member State or another.
Rare examples of Article 259 TFEU actions include France v. UK [1979] ECR 2923
(Case 141/78), Belgium v. Spain [2000] ECR I 3121 (Case C-388/95) (Rioja) and
Spain v. United Kingdom [2006] ECR I 7917 (Case C-145/04).
In France v. UK [1979] ECR 2923 (Case 141/78), France asked the Court of
Justice to declare that the UK, by adopting a statutory instrument governing the
mesh size of nets was in breach of its obligations under the Treaty. The action
had its roots in the conviction of the Master of a French vessel by a British court
for prawn fishing with nets of too small mesh size. The French Government argued
that the Statutory Instrument was adopted in a field which came within the powers
of the EU. Member States were prevented from adopting unilateral measures for
the preservation of fish stocks without consulting the other Member States and the
Commission and seeking the approval of the Commission. In failing to take these
steps the Court of Justice found that the UK had failed to fulfil its obligations under
the (EC) Treaty.
In Belgium v. Spain [2000] ECR I 3121 (Case C-388/95) (Rioja), Belgium

supported by Denmark, the Netherlands, Finland and the UK took an action
pursuant to Article 259 TFEU seeking a declaration that by maintaining in force a

Royal Decree laying down the rules governing the designations of origin and
controlled designations of wine that Spain had failed to fulfil its obligations pursuant
to Article 35 TFEU (which provides that quantitative restrictions on exports and all
measures having equivalent effect are to be prohibited between Member States)
and in breach of Article 4(3) TEU. The Spanish law provided for the possibility of
a denominación de origen if certain conditions were fulfilled. One of the conditions
was that the wine be bottled in cellars in the region of production. Wine produced
in La Rioja region was granted a denominación de origen. The Court of Justice
found that the contested requirement was not in breach of Article 35 TFEU.
59. . . . the requirement at issue must be regarded as compatible with

Community law despite its restrictive effects on trade if it is shown that it is
necessary and proportionate and capable of upholding the
considerable reputation incontestably enjoyed by the Rioja
denominación de origen calificada....
77 In that regard, the denominación de origen calificada would not enjoy

comparable protection if operators established outside the region of
production were placed under an obligation to inform consumers by
means of appropriate labelling that the wine had been bottled outside
that region. Any deterioration in the quality of a wine bottled outside the
region of production, resulting from materialisation of the risks associated
with transport in bulk or subsequent bottling operations, might harm the
reputation of all wines marketed under the Rioja denominación de origen
calificada, including those bottled in the region of production under the
control of the group of producers entitled to use that designation. More
generally, the very coexistence of two different bottling processes, inside
or outside the region of production, with or without systematic monitoring
by that group, might reduce the degree of consumer confidence in the
designation based on the conviction that the production of quality wines
must at every stage be carried out under the control and responsibility of
the relevant group of producers. [Emphasis added.]
In Spain v. United Kingdom [2006] ECR I 7917 (Case C-145/04), Spain sought a
declaration that by enacting the UK’s European Parliament Representation Act,
2003 the UK was in breach of its obligations under the Treaty. The UK legislation
provided for certain persons resident in Gibraltar to vote in European Parliament
elections. Pursuant to the UK legislation, the right to vote in EP elections was
extended to qualifying Commonwealth citizens. Spain contended that the
extension of the right to vote to non-EU nationals was a breach of specific Treaty
provisions and also objected to the creation of a combined electoral region of
Gibraltar and the south-west region of England. The Court of Justice held that in
the current state of Community law the definition of persons entitled to vote and to
stand in elections to the European Parliament was within the competence of the
Member States and that the Treaty provisions did not prevent a Member State from
extending the right to vote to persons who have a close link to the Member State.
The Court of Justice considered that Spain’s pleas were unfounded. The
Commission had refused to give a reasoned opinion given the political sensitivities
of the issue but seems to have supported the UK arguments when the matter went
before the Court of Justice.

In Hungary v. Slovak Republic [2012] ECR 630 (Case C-364/10). Hungary brought
Article 259 TFEU infringement proceedings against the Slovak Republic on the
basis that the Slovak Republic infringed the EU Citizenship provision in Article 21
TFEU and the EU Citizenship Directive (Directive 2004/38/EC) and, in particular,
the free movement provisions by refusing to allow the President of Hungary to
enter the territory of the Slovak Republic. The Commission in its reasoned opinion
considered that Article 21 TFEU and Directive 2004/38/EC did not apply to visits
made by Heads of State and was of the view that the infringement action was
unfounded. The CoJ considered that it was necessary to interpret EU Law in the
light of international law. The CoJ considered that a Head of State had a special
staus governed by interntional law and the law governing diplomatic relations. The
CoJ held at [51], “. . . the fact that a Union citizen performs the duties of a Head of
State is such as to justify a limitation, based on international law, on the exercise
of the right of free movement conferred on that person by Article 21 TFEU.”
The CoJ held that neither Article 21 nor Directive 2004/38/EC obliged the Slovak
Republic to guarantee access to the President of Hungary. The action was
dismised and Hungary was ordered to pay the costs.
In Austria v. Germany C-591/17, ECLI:EU:C:2019:504 Austria initiated

proceedings under Article 259 TFEU seeking a declaration that the Germany
infringed EU law by introducing an infrastructure use charge for passenger
vehicles by virtue of a law on infrastructure charges and by providing relief from
motor vehicle tax corresponding to at least the amount of that charge for the
owners of vehicles registered in Germany. The Court held in Austria’s favour,
maintaining that Germany, by introducing the infrastructure use charge for
passenger vehicles and by providing, simultaneously, a relief from motor vehicle
tax in an amount at least equivalent to the amount of the charge paid, to the benefit
of owners of vehicles registered in Germany, failed to fulfil its obligations under
Articles 18, 34, 56 and 92 TFEU.
Finally, in Germany v. Poland (Case C‑848/19 P), Germany sought to appeal a

judgment General Court in Poland v. Commission (T-883/16),
The General Court had annulled Commission Decision C(2016) 6950 final of 28
October 2016 on review of the exemption of the Baltic Sea Pipeline Connector
(‘the OPAL pipeline’) from the requirements on third-party access and tariff
regulation granted under Directive 2003/55/EC concerning common rules for the
internal market in natural gas on the grounds that it infringed of Article 36(1)(a) of
Directive 2009/73, read in conjunction with Article 194(1)(b) TFEU and the principle
of energy solidarity.
The effect of the General Court’s ruling was to limit Gazprom access to the 470km
pipeline linking the Russian gas producer Nord Stream’s line with onshore
European gas grids running from northern Germany to the Czech Republic.
Germany’s appeal, however, was unsuccessful, with the Court upholding the
General Court ruling:

69 EU institutions and the Member States must take into account the
principle of energy solidarity, referred to in Article 194 TFEU, in the context
of the establishment and functioning of the internal market and, in
particular, the internal market in natural gas, by ensuring security of energy
supply in the European Union, which means not only dealing with
emergencies when they arise, but also adopting measures to prevent crisis
situations….
71 . . . [the] General Court correctly held . . . that the principle of energy

solidarity entails a general obligation, for the European Union and the
Member States, in the exercise of their respective competences in respect
of EU energy policy, to take into account the interests of all stakeholders
liable to be affected, by avoiding the adoption of measures that might affect
their interests, as regards security of supply, its economic and political
viability and the diversification of sources of supply, and to do so in order
to take account of their interdependence and de facto solidarity.
The Court also declared certain grounds of appeal inadmissible:
87 Specifically, in so far as it invokes matters of fact surrounding the

adoption of the decision at issue or that followed its adoption, with a view
to challenging the General Court’s assessment regarding the lack, in that
decision, of any examination by the Commission of the question whether
the variation of the regime governing the operation of the OPAL pipeline,
proposed by the German regulatory authority, could affect the energy
interests of Member States liable to be affected, the appellant does no
more than to call in question the factual analysis carried out by the General
Court, which is not subject to review by the Court of Justice.
11. Conclusion
The enforcement mechanism was a novel aspect of the foundation Treaties. It has
been strengthened, most notable by the addition of the possibility of lump sum and
penalty payments. Articles 258, 259 and 260 TFEU comprise the centralised
enforcement mechanism to ensure that Member States comply with their Treaty
obligations. Direct effect actions in national courts are an alternative private
enforcement mechanism.

Ireland, 2011), chapter 4, pp. 135-137;
Maxwell, 2011), chapter 6, pp. 135- 153;
o Foster, Foster on EU Law (7th ed., Oxford University Press, 2017, chapter
7, pp. 197-205;
o Evans, “The Enforcement Procedure of Article 169 EC: Commission
Discretion” (1979) 4 EL Rev 442;

o Jack, “Article 260(2) TFEU: An Effective Judicial Procedure for the
Enforcement of Judgments?” (2013) 19 ELJ 404

Chapter 10
Reviewing European Union Acts: Article 263 TFEU
1. Required Reading
o Article 263 TFEU
Cambridge University Press, 2019), chapter 10
University Press, 2020), chapters 15 and 16.
o Hartley, The Foundations of European Community Law (5th ed.), chapters
11, 12, and 15.
2. Introduction
We have previously seen that that Direct Actions comprise the second type of
action before the Court of Justice of the European Union, that direct actions start
and finish in Luxembourg and that direct actions include, inter alia, actions for
annulment of EU acts by privileged applicants, semi-privileged applicants and
individuals pursuant to Article 263 TFEU. We also saw that some direct actions
fall within the jurisdiction of the Court of Justice while some direct actions are heard
by the General Court, with a right of appeal on a point of law to the Court of Justice.
Jurisdiction in respect of Article 263 TFEU is shared between the General Court
and the Court of Justice30. The status of the parties determines which court has
jurisdiction. The Statute reserves most Member State actions against the
institutions and the Institution against Institution actions to the Court of Justice.
Other actions, notably those brought by natural and legal persons are instituted in
the General Court. There is a right of appeal on a point of law from the General
Court to the Court of Justice.
The Treaties provide a mechanism for reviewing the legality of EU legal acts. It is
important to understand the distinction between the different types of legal acts, a
topic which was explored in Chapter 3 of the manual. This type of action is referred
to as “Judicial Review” or an “Action for Annulment” or “Review of Legality”.
The principal Treaty provision is Article 263 TFEU31 which provides:
The Court of Justice of the European Union shall review the legality of
legislative acts, of acts of the Council, of the Commission, and of the
European Central Bank, other than recommendations and opinions, and of
acts of the European Parliament and of the European Council intended to
produce legal effects vis à vis third parties. It shall also review the legality
of acts of bodies, offices or agencies of the Union intended to produce legal
effects vis à vis third parties.
30 See Article 256 TFEU and Article 51 of the Statute of the Court of Justice.

It shall for this purpose have jurisdiction in actions brought by a Member
State, the European Parliament, the Council or the Commission on grounds
of lack of competence, infringement of an essential procedural
requirement, infringement of the Treaties or of any rule of law relating to
their application, or misuse of powers.
The Court shall have jurisdiction under the same conditions in actions
brought by the Court of Auditors, by the European Central Bank and by the
Committee of the Regions for the purposes of protecting their prerogatives.
Any natural or legal person may, under the conditions laid down in the first
and second paragraphs, institute proceedings against an act addressed to
that person or which is of direct and individual concern to them, and against
a regulatory act which is of direct concern to them and does not entail
implementing measures.
Acts setting up bodies, offices and agencies of the Union may lay down
specific conditions and arrangements concerning actions brought by
natural or legal persons against acts of these bodies, offices or agencies
intended to produce legal effects in relation to them.
The proceedings provided for in this Article shall be instituted within two
months of the publication of the measure, or of its notification to the plaintiff,
or, in the absence thereof, of the day on which it came to the knowledge of
the latter, as the case may be.
While the sub-paragraphs of Article 263 TFEU are not numbered in the Treaty,
they are commonly referenced by sub-paragraph, e.g., Article 263(1) TFEU.
Commenting on Article 263 TFEU, Craig and de Búrca state (at 509):
Five conditions must be satisfied before an act can be successfully

challenged. The relevant body must be amenable to judicial review; the
act has to be of a kind which is open to challenge; the person or institution
making the challenge must have the standing to do so; there must be
illegality of a type mentioned in Article 263(2); and the challenge must be
brought within the time limit indicated in Article 263(6).32
These five conditions provide useful headings under which to consider Article 263
TFEU and it is proposed to examine each of these five conditions in turn. Chalmers
contains (at 398) a similar characterisation but he counts four issues as he
excludes the time-limit.33 Consideration of these five conditions will make up the
bulk of this chapter but it is also necessary to consider the relationship between
Article 263 TFEU and Article 264 TFEU and between Article 263 TFEU and the
preliminary reference procedure under Article 267 TFEU.34 Wyatt and Dashwood
state (at 155) that the issues in respect of time, whether the act is capable of being
32 6th ed.
33 2nd ed.
34 See chapter 8.11 of the Manual.

subject to judicial review, and standing go to the admissibility of the action while
the grounds of illegality go to the validity of the disputed act.35
3. What bodies are amenable to judicial review?

Article 263(1) TFEU sets out the bodies that are amenable to judicial review. It
provides:
The Court of Justice of the European Union shall review the legality of
legislative acts, of acts of the Council, of the Commission, and of the
European Central Bank, other than recommendations and opinions, and of
acts of the European Parliament and of the European Council intended to
produce legal effects vis à vis third parties. It shall also review the legality
of acts of bodies, offices or agencies of the Union intended to produce legal
effects vis à vis third parties.
The Court is empowered to review the legality of acts of the Council, the
Commission, and the European Central Bank, other than recommendations and
opinions. It is entitled to review the legality of acts of the European Parliament and
the European Council where those acts of those institutions are intended to
produce legal effects vis à vis third parties. Finally, the Court of Justice is
empowered to review of acts of bodies, offices or agencies of the Union intended
to produce legal effects vis à vis third parties.
The Lisbon Treaty added the explicit references to the European Council and the
EU bodies, offices, and agencies. Chalmers states (at 425-426), “the inclusion of
the European Council is the most intriguing element here as subjecting the twenty-
seven Heads of Government to judicial challenge is unprecedented and illustrates
the symbolic importance attached to the rule of law in the European Union.”36
Pringle v. Government of Ireland, Ireland and the Attorney General [2012] ECR,
nyr, 27th November 2012 (Case 370/12) involved a challenge to an act of the
European Council. The validity of European Council Decision 2011/199/EU was
upheld by the CoJ sitting as a court of 27 judges.37
4. What Acts are Open to Challenge?

Article 263(1) TFEU permits the Court of Justice to review the legality of acts other
than recommendations and opinions. The Court is empowered to review
legislative acts and other acts adopted by the institutions listed in Article 263(1).
Regulations, Directives and Decisions which are listed in Article 288 TFEU38 are
clearly reviewable. Recommendations and Opinions are expressly excluded from
35 6th ed.
36 3rd ed.
37 See chapter 1.24 of the Manual.
38 Ex Article 249 EC. See chapter 3 of the Manual.

the possibility of review.39 The rationale for this is that as non-legally binding acts
are not reviewable.
Post Lisbon, Article 263(1) TFEU speaks of the following as being reviewable:
o legislative acts;
o acts of the Council, the Commission and the European Central Bank, other
than recommendations and opinions;
o acts of the European Parliament and of the European Council intended to
produce legal effects vis á vis third parties; and
o acts of bodies, offices or agencies of the EU intended to produce legal
effects vis á vis third parties.
Prior to Lisbon, the CoJ had determined that all EU acts, whatever their form, which
are intended to produce legal effects were subject to review by the CoJ.
In Commission v. Council (ERTA case) [1971] ECR 263, 277 (Case 22/70), the
CoJ formulated the possibility of review stating that it may review “measures
adopted by the institutions, whatever their nature or form, which are intended to
have legal effects.” The CoJ determined that the measure at issue was a legally
binding act subject to review by the Court of Justice, although the measure was
not a regulation, directive or decision. Thus, the list of legally binding acts set out
in Article 288 TFEU was not exhaustive. The measure at issue concerned a
determination as to the negotiating procedure to be used in agreeing the European
Road Transport Agreement. The CoJ stated:
34 The Council considers that the proceedings of 20 March 1970 do not

constitute an act, within the meaning of the first sentence of the first
paragraph of [Article 263 TFEU], the legality of which is open to review.
35 Neither by their form nor by their subject-matter or content, it is argued,

were these proceedings a Regulation, a Decision or a Directive within the
meaning of [Article 288 TFEU]
36 They were really nothing more than a coordination of policies amongst

Member States within the framework of the Council, and as such created
no rights, imposed no obligations and did not modify any legal position.
…
39 Since the only matters excluded from the scope of the action for
annulment open to the member states and the institutions are
“Recommendations or Opinions” - which by the final paragraph of [Article
288 TFEU] are declared to have no binding force – [Article 263 TFEU]
39In Chapter 8.2, we saw that the CoJ has determined that it is possible to give preliminary rulings
pursuant to Article 267 TFEU in respect of recommendations and opinions. Article 267 TFEU
entitled the Court to give preliminary rulings in respect of the validity and interpretation of “acts of
the institutions, bodies, offices or agencies of the Union.” Unlike Article 263 TFEU, Article 267 TFEU
does not expressly exclude “recommendations and opinions”.

treats as acts open to review by the court all measures adopted by the
institutions which are intended to have legal force.
40 The objective of this review is to ensure, as required by [Article 19(1)

TEU], observance of the law in the interpretation and application of the
Treaty.
41 It would be inconsistent with this objective to interpret the conditions
under which the action is admissible so restrictively as to limit the
availability of this procedure merely to the categories of measures referred
to by [Article 288 TFEU].
42 An action for annulment must therefore be available in the case of all

measures adopted by the institutions, whatever their nature or form, which
are intended to have legal effects.
A useful illustration of the issue of whether an act is regarded to have legal effects
is the Court of Justice decision in Noordwijks Cement Accord [1967] ECR 75
(Cases 8-11/66). It was a competition law case. Article 101 TFEU40 prohibits anti-
competitive agreements between undertakings. There was a possibility of an
exemption being granted to an agreement by the Commission. Undertakings were
immune from fines between the date they submitted an agreement to ascertain if
it qualified for an exemption and the date the Commission issued its decision.
However, the immunity only lasted until a preliminary view was adopted by the
Commission. If the preliminary view was negative the firms opened themselves to
the possibility of fines between that date and the ultimate decision of the
Commission (if the decision is unfavourable). In this case, following a preliminary
investigation, the Commission issued a letter expressing view that the notified
agreement was not exempt. The firms brought proceedings under Article 263
TFEU seeking to quash the decision.
The issue which arose was whether the letter notifying preliminary assessment
reviewable by the CoJ under Article 263 TFEU? The Commission argued that the
letter was an opinion and not a legally binding act. The Court considered that the
act did have legal effects as it deprived the firms of immunity from fines from the
date of receipt of the letter.
The Court of Justice stated:
This measure deprived them of the advantages of a legal situation

....attached to the notification of the agreement, and exposed them to a
grave financial risk. Thus the said measure affected the interests of the
undertaking by bringing about a distinct change in their legal position. It is
unequivocally a measure which produces legal effects touching the interest
of the undertakings concerned and which is binding on them. It thus
constitutes not a mere opinion but a decision.

In IBM v. Commission [1981] ECR 2639 (Case 60/81), the Commission had
opened proceedings against IBM for abuse of a dominant position under EU
Competition law. The Commission wrote to IBM enclosing a statement of
objections (allegations against IBM). IBM sought to annul the decision to
commence proceedings and the statement of objections. The Court of Justice held
that they were not reviewable acts being merely preliminary decisions. The
statement of objections did not alter IBM’s legal position.
In Akzo Chemie v. Commission [1986] ECR 1965 (Case 53/81), the issue was
whether the decision to show Akzo’s confidential business documents to
complainant in a competition law case was reviewable. The CoJ considered that
the decision directly affected Akzo’s right to confidentiality, independently of the
final decision. Moreover, a right to challenge the decision on the documents in the
course of a review of the final decision would not constitute an adequate remedy
because by then the damage would have been done.
In summary, the CoJ’s view is that acts which produce legally binding effects,
whether expressly listed in Article 263(1) TFEU or not, are subject to review of
legality by the Court of Justice. Wyatt and Dashwood state (at 158), “[w]hat
renders an act susceptible to judicial review under Article 263 TFEU is, therefore,
the intention of the of an EU institution, or of any other entity established pursuant
to the Treaties to exercise their powers in a way that affects the legal situation of
others.”41
4.1 Acts under ASFJ/PJCC and CFSP
An exception to this general rule is Article 276 TFEU which provides:
In exercising its powers regarding the provisions of Chapters 4 and 542 of

Title V of Part Three relating to the area of freedom, security and justice,
the Court of Justice of the European Union shall have no jurisdiction to
review the validity or proportionality of operations carried out by the police
or other law enforcement services of a Member State or the exercise of the
responsibilities incumbent upon Member States with regard to the
maintenance of law and order and the safeguarding of internal security.
[Footnote added. Emphasis added.]
Post-Lisbon, with the exception of the areas covered by Article 276 TFEU above,
acts adopted under ex Pillar Three (PJCC) are subject to review for legality by the
CoJ. At Articles 67-89 TFEU, the Lisbon Treaty has brought the provisions
concerning the Area of Freedom Security and Justice (AFSJ) within the main fabric
of the Treaty.43
Craig and de Búrca note (at 513) that post-Lisbon “[t]he general principle is that
the Union Courts have no jurisdiction over CFSP acts.”44 This is subject to two
41 6th ed.
42 Chapter 4 is concerned with Judicial Co-operation in Criminal Matters and Chapter 5 is
concerned with police co-operation.
43 See Craig and de Búrca, (6th ed.), at 513.
44 6th ed.

exceptions, i.e., that there are CFSP acts which are subject to review by the CoJ.
They state (at 514) that:
First, the [CoJ] has jurisdiction to monitor compliance with Article 40 TEU,
which provides in essence that exercise of power under the CFSP shall not
encroach on competences under the TFEU and vice versa.
Secondly, the Union Courts can also rule on proceedings, brought in

accordance with Article 263(4) TFEU, to review the legality of decisions
providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the TEU, which is
concerned with CFSP. It is moreover clear from Kadi45 that review of such
measures will not be precluded because they were adopted pursuant to
Security Council Resolutions of the United Nations.46
Thus, the CoJ policies the division between the TFEU and CFSP and the CoJ has
the power to review acts adopted against natural or legal persons in the sphere of
CFSP.
5. Locus Standi or Standing

The question of standing, or locus standi, is concerned with who has the right to
initiate a legal action.
5.1 Privileged Applicants
It [the Court of Justice of the European Union] shall for this purpose have
jurisdiction in actions brought by a Member State, the European
Parliament, the Council or the Commission on grounds of lack of
competence, infringement of an essential procedural requirement,
infringement of the Treaties or of any rule of law relating to their application,
or misuse of powers.
Article 263(2) TFEU states that an action may be brought by a Member State, the
European Parliament, the Council, or the Commission. These applicants do not
have to satisfy any pre-conditions to establish standing. These parties are referred
to as “privileged applicants”. Hartley states (at 343), “[t]he justification for giving
privileged applicants unlimited locus standi is that every [European Union] act
concerns them...This idea of universal interest is justified in the case of the three
‘privileged’ [European Union] institutions by reason of their wide responsibilities;
while Member States as the creators of the whole system, may equally be
regarded as interested in everything it does.” It seems from the wording of Article
263 TFEU that these applicants have standing even if the measure is addressed
to someone else.
45 P Kadi v. Council [2008] ECR I 6351 (Cases C-402/05 P and C-415/05), a case which was
examined in the context of Human Rights in the EU.
46 6th ed. [Footnote added.]

Recent actions by privileged applicants include Commission v. Council
(Agreement with Kazakhstan) C-244/17, EU:C:2018:662, where the Grand
Chamber annulled Decision 2017/477 156 on the position to be adopted on behalf
of the European Union within the Cooperation Council established under the
Partnership and Cooperation Agreement with Kazakhstan; and Joined Cases
Commission v. Council (Antarctic MPAs) C-626/15 and C-659/16, EU:C:2018:925,
where the Grand Chamber had to decide on the delineation between the common
fisheries policy (CFP) and environmental policy and dismissed in its entirety the
Commission’s action for annulment.
5.2 Evolution of Standing of the European Parliament
The European Parliament has not always been a privileged applicant.
The Court of Justice played a role in extending the role of the European Parliament.
In Parliament v. Council (Chernobyl) [1990] ECR I 2041 (Case 70/88), the CoJ
determined that the European Parliament had standing to bring judicial review
proceedings but only in circumstances where the prerogatives of the European
Parliament were infringed.
The case involved a Regulation, adopted under the Euratom Treaty in the wake of
the Chernobyl disaster, and which laid down maximum permitted levels of
radioactive contamination of foodstuffs and feeding stuffs following a nuclear
accident or any other case of a radiological emergency. The Parliament objected
to the fact that the legal act was adopted on a legal basis which required only
consultation of the European Parliament rather than a legal basis which would
have required the co-operation procedure47, a procedure for adopting legal acts,
under which the Parliament had more influence.
The Court of Justice stated:
27 … an action for annulment brought by the Parliament against an act of

the Council or the Commission is admissible provided that the action seeks
only to safeguard its prerogatives and that it is founded only on
submissions alleging their infringement. Provided that condition is met, the
Parliament’s action for annulment is subject to the rules laid down in the
Treaties for actions for annulment brought by the other institution.
28 In accordance with the Treaties, the Parliament’s prerogatives include

participation in the drafting of legislative measures, in particular
participation in the cooperation procedure laid down in the EEC Treaty.
29 In the present case, the Parliament claims that the contested regulation
is based on [a specific Article] of the Euratom Treaty, which provides only
that the Parliament is to be consulted, whereas it ought to have been based
on [a specific Article] of the EEC Treaty, which requires implementation of
the procedure for cooperation with the Parliament.
47 The co-operation procedure was abolished by the Lisbon Treaty.

The Court of Justice did not afford the Parliament full privileged status but afforded
it standing to protect its prerogatives, in this instance its right to have a greater
involvement in the process of adopting legislation. The European Parliament’s
action was therefore found to be admissible.
In a later judgment in the same case, Parliament v. Council [1991] ECR I 4529
(Case 70/88), the Court rejected the Parliament’s contention and determined that
the Regulation had been correctly adopted under the legal basis in the Euratom
Treaty. The CoJ also included the EP as a respondent for the purposes of judicial
review at a time when the Treaty only provided for the Council and Commission to
be respondents (Partie Ecologiste “Les Verts” v. Parliament [1986] ECR 1993
(Case C-294/83).)
These judicial developments were gradually incorporated into the treaties. The
Maastricht Treaty (TEU) amended the EC Treaty to reflect the Chernobyl decision,
that the Parliament had locus standi to defend its own prerogatives. Since the
Nice Treaty, the European Parliament has full locus standi, together with the
Council, the Commission and the Member States, to bring annulment proceedings
under what is now Article 263 TFEU.
5.3 Semi-privileged Applicants
The Court shall have jurisdiction under the same conditions [i.e. the
conditions set out in paragraph 2] in actions brought by the Court of
Auditors, by the European Central Bank and by the Committee of the
Regions for the purposes of protecting their prerogatives.
Semi-privileged applicants have locus standi to defend their prerogatives. It is

discussed above that for a time; the European Parliament fell into this category.
The Maastricht Treaty gave the European Central Bank semi-privileged status.
The Treaty of Amsterdam added the Court of Auditors to this category. The Treaty
of Lisbon added the Committee of the Regions as a body entitled to bring actions
to defend its own prerogatives.
They are regarded as semi-privileged as they are required to establish that the
purpose of the action is to defend their prerogatives, but they do not have to satisfy
any other pre-conditions.
Chalmers explains (at 414) the rationale for affording (limited) standing to this class
of applicant: “The justification of their interest in litigation is different [from the
privileged applicants]. It is not to police generally but to protect their institutional
prerogatives. It is a defensive power to ensure that other institutions do not
trespass on their legal entitlements.”48 An example of when a prerogative might
be infringed is where an incorrect legislative procedure is used. For example, if
the legislative procedure required consultation with the Committee of the Regions
and the Committee of the Regions was not consulted.
48 2nd ed.

5.4 Non-privileged Applicants
5.4.1 The Text

Article 263(4) TFEU governs the position of non-privileged applicants, natural or
legal persons. The provision was amended by the Treaty of Lisbon. Article 263(4)
provides:
It is clear from the text of Article 263(4) TFEU that the right of individuals to bring
proceedings is limited. The addressee of an act can challenge that act. Other acts
can be challenged where of “direct and individual concern” to the applicant.
Individuals may also challenge regulatory acts of direct concern to the individual
which do not entail implementing measures.
5.4.2 Pre-Lisbon
Pre-Lisbon, Article 230(4) EC provided:
Any natural or legal person may, under the same conditions, institute
proceedings against a decision addressed to that person or against a
decision, which although in the form of a regulation or decision addressed
to another person, is of direct and individual concern to the former.
The text of ex Article 230(4) EC specifically referred to the possibility of non-

privileged applicants challenging regulations and decisions but did not mention
directives. It therefore appeared that an individual lacked locus standi to challenge
directives. However the Court of Justice determined that it was open to an
applicant to argue that a directive was in reality a decision and that it was of
“direct and individual concern”; Gibraltar v. Council [1993] ECR I 3605 (Case C-
298/89) and Salamander AG v Parliament and Council [2000] ECR II 2487 (Cases
T-172, 175 and 177/98). Gibraltar v. Council [1993] ECR I 3605 (Case C-298/89)
concerned a provision of a Directive suspending the application to Gibraltar Airport
of the Directive concerning authorisation of inter-regional air services for the
transport of passengers, mail and cargo between Member States. The CoJ held
that the Directive was general in nature and was not in reality a decision. The
challenge was determined to be inadmissible.
The rationale for allowing individuals to challenge a regulation and/or a directive of

“direct and individual” concern to the non-privileged applicant is so that the
institutions cannot, by their choice of legal instrument, deprive an applicant of the
judicial protection afforded by the Treaties.
Craig and de Búrca state (at 521-522):
Article 230(4) EC was the predecessor to Article 263(4) TFEU but the
wording was subtly different. Article 230(4) stated that a decision

addressed to another person might be of individual concern to the
applicant, and that an act in the form of a regulation might in reality be a
decision that was of direct and individual concern to the applicant. It
therefore contained an invitation to look behind the form of a measure to
its substance, in that the ECJ or CFI could decide that a regulation was in
reality a decision which was of direct and individual concern.49
In Air France v. Commission [1994] ECR II 121 (Case T-3/93) the General Court
determined that Air France, a non-privileged applicant, had locus standi to
challenge an oral statement made by a Commission spokesman at a press
conference. It seems that no written text existed, and it was not addressed to
anyone. As Hartley notes (at 345), “it would be wrong if the Commission could
deprive an applicant of the right to challenge a decision by the simple expedient of
not addressing it to anyone. Thus, it seems that the form of the measure does not
matter as long as it is in substance a decision.”
Under ex Article 230(4) EC a non-privileged applicant who wished to challenge an

act other than a decision addressed to that person also had to show that the
decision addressed to another or a regulation (by definition addressed to all
Member States) or a directive50 (addressed to some or all Member States) was in
substance a decision addressed to that individual.
A considerable body of case-law built up around this issue.
The test which the CoJ generally applied in seeking to establish this issue of
substance over form was what Craig and de Búrca refer to as the “abstract
terminology test.”
While Directives were not expressly mentioned in ex Article 230(4) EC, the Court
of Justice has determined that it was open to an applicant to argue that a Directive
was in reality a decision and that it was of “direct and individual concern” to the
applicant, i.e., if the Court determined that the measure was a Regulation (or in
relevant cases a Directive) the individual applicant would not be regarded as
individually concerned.
In Codorniu SA v. Council [1994] ECR I 1853 (Case C-309/89), the Court of Justice
accepted that while a Regulation might be a “true Regulation” it might nevertheless
be of individual concern to an applicant. The Regulation at issue restricted the use
of the term “crémant” to quality sparkling wines produced in France and
Luxembourg. The applicants were Spanish producer of quality sparkling wines
which held a graphic trademark for the term “Gran Crémant de Cordorniu” which it
has been using since 1924 to designate one of its quality sparkling wines. In
considering whether the applicant’s challenge to the legality of the Regulation was
admissible under [Article 230(4)] the Court of Justice stated, at paragraph 19:
Although it is true that according to the criteria in the second paragraph of

Article 173 [Now Article 230(4)] of the Treaty the contested provision is, by
49 6th ed.

nature and by virtue of its sphere of application, of a legislative nature in
that it applies to the traders concerned in general, that does not prevent it
from being of individual concern to some of them.
Craig and de Búrca consider (at 521), “[i]f a regulation was found to be a ‘true
regulation’ on the basis of the abstract terminology test then traditionally the Court
would simply conclude that the applicant was not individually concerned. In
Codorniu the Union Courts modified this legal stance and accepted that a
regulation might be a ‘true’ regulation as judged by the abstract terminology test,
but that nonetheless it might be of individual concern to the applicant. This was a
liberalizing move. However, an applicant still had to show individual concern in
accordance with the Plaumann test.”
5.4.3 Post-Lisbon
Article 263(4) provides:
The wording of paragraph 4 differs considerably post-Lisbon. Post-Lisbon Article

263(4) does not distinguish between acts specifically by name but rather
distinguishes between “acts addressed” to a person, other “acts” and “regulatory
acts”.
5.4.4 Standing of Interest Groups

Interest groups may be afforded standing under Article 263(4) TFEU. In
Greenpeace v. Commission [1995] ECR II 2205 (Case T-585/93), Greenpeace
sought to challenge a Commission decision granting aid for the purposes of
building power stations on the Canary Islands. The General Court determined that
Greenpeace did not have standing to bring the action.
Chalmers states (at 427), “[p]ublic interest associations will ... only be able to seek
judicial review of measures not addressed to them if they are granted specific
procedural privileges or safeguards; their members are individually concerned; or
in negotiations they are recognised by the EU institutions as the central interlocutor
of particular interests. It will be rare that any of these conditions will be met.”51
5.5 Three situations in which non-privileged applicants can bring

proceedings
Article 263(4) TFEU permits non-privileged applicants to bring actions in three

types of cases:
51 2nd ed.

First, a non-privileged applicant can challenge an act addressed to the person. A
non-privileged applicant does not have to satisfy any conditions when he/she/it is
the addressee of the act sought to be challenged.
Secondly, a non-privileged applicant may challenge an act of which he is not the

addressee if he can satisfy a test, that the act is “direct and individual concern” to
him.
Thirdly, where the act is a regulatory act which does not entail an implementing
measure, non-privileged applicants can challenge such an act if it is of direct
concern, but the non-privileged applicant does not have to show individual
concern.
Somewhat unfortunately, as Chalmers points out (at 415), “whilst a distinction is

made [in the Treaty] between legislative acts and non-legislative acts, with the
latter comprising delegating acts and implementing acts, no definition is
provided of regulatory acts.”52
A non-privileged applicant, except where he is the addressee of the act is required

to satisfy a test in order to establish standing to bring judicial review proceedings.
Where he wishes to challenge a regulatory act which does not entail implementing
measures, he must show “direct concern”. If he wishes to challenge other acts he
must satisfy both tests of direct concern and individual concern.
5.6 A Cumulative Test
The conditions of “direct and individual concern are cumulative”. In Inuit Taparitt
Kanatami and Others v. European Parliament and Council [2013] ECR I nyr, 3
October 2013 (C-583/11P) the Court stated:
76. Accordingly, since the conditions that the act of which annulment is
sought should be of direct concern and individual concern are cumulative,
the consequence, if one of those conditions is not met by an applicant, is
that an action brought by him for annulment of that act must be held to be
inadmissible.
5.7 Direct Concern
Craig and de Búrca state (at 515) that “[t]he general principle is that a measure will
be of direct concern where it directly affects the legal situation of the applicant and
leaves no discretion to the addresses of the measure who are entrusted with its
application.”53 Chalmers states that there are two dimensions to direct concern.
First (at 416), “there must be a direct link between the act of the EU institution and
the damage inflicted on the applicant.”54 Secondly (at 417), “the measure must
adversely affect the applicant’s legal position.”55
52 Ibid.
53 6th ed.
54 2nd ed.
55 Ibid.

In NV International Fruit Company v. Commission [1971] ECR 411 (Cases 41-
44/70), the applicants were importers of apples from a non-Member State, who
had applied in advance for import licences. National authorities passed the
information to the Commission and the Commission enacted a Regulation which
set down the criteria for the applications. The Court of Justice stated:
25. [The provision of the Regulation at issue]…makes it clear that the

national authorities do not enjoy any discretion in the matter of the issue
of the licences and the conditions on which applications by the parties
concerned should be granted....
28. The measure whereby the Commission decides on the issues of import
licenses thus directly affects the legal position of the parties concerned.
In Front National v. European Parliament [2004] ECR I 6289 (Case C-486/01P )

the CoJ looked at the issue of whether a measure adversely affects an applicant’s
legal position. The facts concerned a number of MEPs who sought to establish a
political grouping in the EP. The Front National did not meet the criteria to establish
a political grouping. The Front National was held not to be directly concerned as
the measure at issue did not contain a legal entitlement to create a political
grouping in the EP.
The two part test is also apparent in Boyle v. Commission [2006] ECR II-1699
(Joined Cases T-218-240). Here, the Irish authorities had no discretion and the
legal situation of the applicants was affected. The Commission listed fishing
vessels which were to receive grants in one Annex to the Decision and fishing
vessels which were to be refused grants in another Annex. (This case is discussed
in more detail below).
5.8 Individual Concern
The leading decision on the test for individual concern is that in Plaumann & Co v.
Commission [1963] ECR 95 (Case 25/62). The applicant sought to challenge
decisions addressed to another person; a Commission decision addressed to
Germany refusing permission to lower the duty on imported clementines. The
applicants were engaged in importing clementines and sought to challenge the
legality of the Commission’s decision. The Court of Justice stated (at 107):
Persons other than those to whom a decision is addressed may only claim
to be individually concerned if that decision affects them by reason of
certain attributes which are peculiar to them or by reason of circumstances
in which they are differentiated from all other persons and by virtue of these
factors distinguishes them individually just as in the case of the person
individually addressed. In the present case the applicant is affected by the
disputed Decision as an importer of clementines, that is to say, by reason
of a commercial activity which may at any time be practised by any person
and is not therefore such as to distinguish the applicant in relation to the
contested Decision as in the case of the addressee. [Emphasis added.]
The test is difficult to satisfy. It has been cited in many later cases. The Court of
Justice held that as the applicant did not satisfy the test of individual concern the

action was inadmissible. The Court of Justice also stated that if the applicant is
not individually concerned it becomes unnecessary to enquire whether he is
directly concerned.
AE Piraiki-Patraiki v. Commission [1985] ECR 207 (Case 11/82) concerned

applicants who were Greek producers and exporters of yarn. They sought to
challenge a Decision addressed to France permitting the imposition of a quota
system over a three-month period of imports into France of yarn from Greece. The
applicants argued that they should be regarded as being individually concerned as
they were the firms which would be affected by the quota introduced by the
decision. It was clear on the facts of this case that no other firm could plausibly
set up production during the limited period of the quota/decision. Some of the
applicants were given standing because they had entered into contracts of sale
with French customers before the date of the contested decision, which contracts
were to be performed during the time the quota/decision was in force.
Boyle v. Commission [2006] ECR II-1699 (Joined Cases T-218-240) is an example

of where the individual concern test was satisfied. Irish fishermen successfully
challenged a Commission Decision which introduced new criteria to be applied for
funding within the context of the common fisheries policy. The contested Decision
was addressed to the Member States concerned but it applied to a series of clearly
identified vessels which were listed in the Annexes to the contested decision. The
contested decision was therefore considered to be a series of individual decisions,
each affecting the legal situation of the owners of those vessels, including the legal
situation of the applicants. The CFI (now the General Court) held:
49. The Court considers that the number and identity of the vessel-owners
in question were fixed and ascertainable even before the date of the
contested decision and that the Commission was in a position to know that
its decision affected solely the interests and positions of those owners. The
contested decision concerns a closed group of identified persons at the
time of its adoption, whose rights the Commission intended to
regulate. It follows that the factual situation thus create characterises the
applicants by reference to all other persons and distinguishes them
individually in the same way as an addressee of the decision (Joined Cases
106/63 and 107/63 Toepfer and Getreide-Import v Commission [1965] ECR
405, 411).
Individual concern was also established was Bupa v. Commission [2008] II 81 (T-
289/03), in which the applicant argued that a Commission decision ought to be
annulled. The decision in question stated that the Irish Risk Equalisation Scheme
(RES) in Private Medical Insurance (PMI) was not State Aid. The CFI (now the
General Court) considered that BUPA was individually concerned within the
meaning of the Plaumann test. BUPA was the VHI’s main competitor on the Irish
PMI market, in which the VHI occupied a dominant position, and the application of
the RES would give rise to RES payments being made by BUPA Ireland for the
sole benefit of the VHI. The contested decision not only substantially affected
BUPA in its competitive position on the Irish PMI market but was also aimed at
BUPA Ireland, at the time of its adoption, as the only net contributor to the fund set
up for the RES. The General Court also referred to the fact that it was on account
of the fear of such a substantial effect on its competitive situation, even to the point

of having to leave the Irish PMI market, that BUPA Ireland lodged a complaint with
the Commission. Furthermore, BUPA was the only interested third party to have
played an active part, following a dispute lasting approximately three years, in the
procedure leading to the adoption of the contested decision. By virtue of the
foregoing, BUPA had distinguished itself from all other economic operators.
Finally, individual concern was also recently accepted by the General Court in
respect of the cities of Paris, Brussels, and Madrid, which sought to challenge
Commission Regulation (EU) 2016/646 amending Regulation (EC) No 692/2008
as regards emissions from light passenger and commercial vehicles in Ville de
Paris; Ville de Bruxelles and Ayuntamiento de Madrid v. European Commission,
Joined Cases T-339/16, T-352/16, and T-391/16; ECLI:EU:T:2018:927 and IPSO
v. ECB T-713/14; ECLI:EU:T:2016:727.
A case in which individual concern was not established was Rothley v. European
Parliament [2002] II 579 (T-17/00)56 in which a group of about 70 MEPs sought to
annul the European Parliament’s decision to amend its rules of procedure following
the signing of an inter-institutional agreement with the European Anti-Fraud Office
(OLAF). The amendment imposed obligations on members to co-operate with
OLAF and to report suspected fraud which the MEPs considered to violate their
mandate. The MEPs were concerned that the decision would compromise their
independence and their immunity. One of the provisions of particular concern
permitted OLAF to have immediate and unannounced access to any information
held by the MEPs and to their premises.
The CFI (now the General Court) considered that the decision was of “general
application”. The purpose of the decision was to lay down conditions in which the
Parliament would co-operate with OLAF in order to facilitate the smooth operation
of investigations in the EP. The measure set out rights and duties of MEPs where
they were implicated or might have knowledge of possible cases of fraud. The
General Court emphasised that the contested measure applied without distinction
to MEPS in office at the time of entry into force of the measure and to MEPs
subsequently elected. Thus, it applied without temporal limitation to objectively
determined situations and had legal effects with regards to categories of persons
envisaged generally and in the abstract.
The General Court then went on to consider whether the MEPs were “individually
concerned”. The MEPs argued that they belonged to a closed circle as the MEPs
elected at the time the measure was adopted. The General Court did not consider
this to be sufficient. The measure applied to the MEPs as they belonged to a
category of persons which is defined generally and in the abstract. The MEPs had
not claimed that the contested measure altered their legal situation or affected
them in a way more particularly than other MEPs. Merely belonging to one of the
categories of person to whom the contested measure is addressed, the MEPs or
the EP staff, was not enough to distinguish the applicants. The contested measure
did not more than implement and adjust within the EP rules applying to members
and staff of the EU institutions. The applicants had not established that they were
individually concerned, and the proceedings were inadmissible.
56The CoJ on appeal confirmed the lack of standing of the MEPs; Rothley v. European Parliament
[2004] ECR I 3149 (C-167/02P).

The Plaumann test has been criticised as being “unduly restrictive”.57
5.9 A New Approach?
In Unión de Pequenos Agricultores v. Council [2002] ECR I 6677 (Case C-50/00

P), farmers sought to challenge a Regulation which amended the common
organisation of the olive oil market. The Regulation at issue abolished the previous
intervention scheme and set up a system of aid for private contracts. Regulations
do not require national implementing measures and it is not therefore possible to
challenge a Regulation in the domestic courts. A question, therefore, arose as to
whether the applicants had access to an effective judicial remedy.
The matter came before the Court of Justice on appeal from the Court of First
Instance (now the General Court) which had held the application inadmissible on
the grounds that the members of the organisation were not individually concerned.
The Court of Justice referred the case to plenary hearing to reconsider the case
law on individual concern.
The UPA argued inter alia that the decision of the Court of First Instance violated
its fundamental right to effective judicial protection, which is a recognised principle
of EU Law and inherent in the system of remedies established by the Treaties, that
the CFI had an obligation to examine the factual scenario as to whether the test
for locus standi would prevent an individual from enjoying effective judicial
protection, including an examination of the possibility of a challenge in the national
court with a reference under Article 267 TFEU.
Advocate General Jacobs was critical of the existing (Plaumann) approach and, in
a considered Opinion, stated (at [102(4)]), “[t]he only satisfactory solution is
therefore to recognise that an applicant is individually concerned by a Community
measure where the measure has or is liable to have, a substantial adverse effect
on his interests ...” [Emphasis added.]
Advocate General Jacobs was thus advocating a relaxation of the existing rules.
The Court of Justice did not follow the Opinion of Advocate General Jacobs. The
Court of Justice stated that the Treaty provides a complete system of remedies
(see paragraph 40).
The Court of First Instance (now the General Court) also advocated a relaxing of
the Plaumann test in Jégo-Quéré et Cie v. Commission [2002] ECR II 2365 (Case
T-177/01), a case decided after the Opinion of Advocate General Jacobs in UPA
but before the Court of Justice had given its decision in UPA. The Court of First
Instance also proposed an alternative test. The facts of Jégo-Quéré concerned a
Regulation with the objective of reducing catches of juvenile hake, and which set
a minimum mesh size for fishing nets. The Applicant was a fishing company which
fished for whiting and operated four vessels with nets of mesh 80mm. The Court
of First Instance considered whether the inadmissibility of the annulment action
would deprive the applicant of an effective remedy. The Court of First Instance
noted that there were:
57 Craig and de Búrca, (3rd ed), at 490.

. . . no acts of implementation capable of forming the basis of an action in
a national court. The fact that an individual affected by a community
measure may be able to bring it validly before the national courts by
violating the rules it lays down and then asserting their illegality in
subsequent judicial proceedings brought against him does not constitute
an adequate means of judicial protection. Individuals cannot be required
to breach the law in order to gain access to justice.
The Court of First Instance considered that the system of remedies provided by
the Treaty did not guarantee the applicants an effective remedy and concluded:
In light of the foregoing, and in order to ensure effective judicial protection

for individuals, a natural or legal person is to be regarded as individually
concerned by a Community measure of general application that concern
him directly if the measure in question affects his legal position in a manner
which is both definite and immediate, by restricting his rights or by imposing
obligations on him. The number and position of other persons who are
likewise affected by the measure or who may be so are of no relevance in
that regard.
In the present case, obligations are indeed imposed on Jégo Quéré by the
contested provisions. The applicants, whose vessels are covered by the
scope of the regulation, carries on fishing operations in one of the areas in
which, by virtue of the contested provisions, such operations are subjected
to detailed obligations governing the mesh size of the nets to be used.
It follows that the contested provisions are of individual concern to the

applicant. [Emphasis added.]
The CFI decision was overturned on appeal to the CoJ in Commission v. Jégo-
Quéré et Cie. SA [2004] ECR I 3425 (C-263/02P). The CoJ followed the reasoning
of its decision in UPA, once again stating that the Treaty provided a complete
system of remedies. The CoJ stated that the right to an effective remedy could not
have the effect of setting aside a condition laid down in the Treaty.
It was clear therefore that a Treaty amendment would be necessary to relax the
Plaumann interpretation of “individual concern”. While the Lisbon Treaty amended
the text of Article 263(4) TFEU it did not provide a different interpretation of
individual concern.
More recently, in Inuit Taparitt Kanatami and Others v. European Parliament and
Council [2013] ECR I nyr, 3 October 2013 (C-583/11P), a case which is discussed
in more detail below, the applicants asked the CoJ to review the restrictive
interpretation of the condition of individual concern. That test was established by
Plaumann. The applicants argued that if the CoJ were to apply the test of
“substantial adverse effect” on the appellants’ interests caused by the contested
regulation, as proposed by Advocate General Jacobs in point 60 of his Opinion in
the case which gave rise to the judgment in Unión de Pequeños Agricultores v
Council, the CoJ would come to the conclusion that that contested Regulation was
of individual concern to the appellants in the case.

The Court of Justice rejected the argument that the Regulation was of individual
concern to the applicants emphasising that the “individual concern” test had not
been altered in the Lisbon Treaty. The test remained the Plaumann test as per the
settled case-law.
5.10 The Lisbon Treaty and Article 263(4) TFEU
The Treaty of Lisbon eases the conditions for the admissibility of certain actions
brought by individuals (natural or legal persons) against acts of the institutions,
bodies, offices, or agencies of the European Union. Individuals may challenge
acts addressed to them. Individuals may bring proceedings against a regulatory
act if they are directly affected by it and if it does not entail implementing measures.
Consequently, individuals will no longer have to show that they are individually
concerned by such an act, but they do have to satisfy the direct concern test
(Article 263 (sub-paragraph 4) TFEU). Individuals continue to have to satisfy the
direct and individual concern test in respect of other acts.
We will first consider Regulatory acts not entailing implementing measures and
then the “other acts.”
5.10.1 Regulatory acts

Individuals may bring proceedings against a regulatory act if the individual is
directly affected by it and if it does not entail implementing measures. If an act falls
into this category, the advantage to the individual is that he does not have to satisfy
“the individual concern” test.
The difficulty is the Lisbon Treaty does not contain a definition of regulatory acts.
It distinguishes between legislative and non-legislative acts in Article 289(3) TFEU.
Further we saw in Chapter 3 that there are three types of non-legislative acts. First,
the Treaties provides for the adoption of non-legislative acts by the Commission,
the Council and the European Council. Secondly, the Treaties provides for
delegated acts (Article 290 TFEU). Thirdly the Treaties provide for implementing
acts (Article 291 TFEU).
Concern was expressed as to how the CoJ would characterise regulatory acts.
Further concern was expressed as to how the CoJ would interpret the meaning of
the requirement that the regulatory act “does not entail implementing measures.”
In Inuit Taparitt Kanatami and Others v. European Parliament and Council, 6

September, 2011 (Case T-18/20), discussed below, the General Court has given
an interpretation of what is meant by a “Regulatory act” for the purposes of Article
263(4) TFEU.
Writing prior to the decision in Inuit Taparitt Kanatami, Chalmers submitted (at
415), “[i]t seems that regulatory acts are intended to be non-legislative acts.”58 This
view has been confirmed by the General Court. Also writing prior to the decision in
Inuit Taparitt Kanatami, Wyatt and Dashwood stated (at 176), “[i]t seems most
likely that the new basis for standing will be understood by the Union Courts to
58 2nd ed.

cover any legally binding act that is non-legislative, so long as it concerns the
applicant directly and requires no implementing measures to be taken either by the
EU institutions or the Member States. We see no reason to restrict the category
of ‘regulatory acts’ to delegated or implementing acts within the meaning of,
respectively Articles 290 and 291(2) TFEU.”59
In Inuit Taparitt Kanatami and Others v. European Parliament and Council [2011]
ECR II 5599 (Case T-18/10), the General Court considered the meaning of
“Regulatory acts”. The EU had adopted a Regulation on trade in seal products.
This Regulation was challenged by several applicants who were traders of seal
products and who sought annulment of the Regulation. The judgment of the
General Court is devoted to the question of admissibility:
39. It must be pointed out that, although that provision introduces a change
from the EC Treaty so far as concerns access to the Courts of the European
Union, namely that now a natural or legal person may institute proceedings
against a regulatory act which is of direct concern to them and does not
entail implementing measures, the meaning of “regulatory act” is not
defined by the FEU Treaty.
40. Consequently, in order to be able to rule on the admissibility of the

present action, the Court must carry out a literal, historical and teleological
interpretation of that provision.
42. The fourth paragraph of Article 263 TFEU, even though it omits the
word “decision” reproduces those two possibilities and adds a third. It
permits the institution of proceedings against individual acts, against acts
of general application which are of direct and individual concern to a natural
or legal person and against a regulatory act which is of direct concern to
them and does not entail implementing measures. It is apparent from the
ordinary meaning of the word ‘regulatory’ that the acts covered by that third
possibility are also of general application.
Thus, “regulatory acts” are of general application:
43. Against that background, it is clear that that possibility does not relate
to all acts of general application, but to a more restricted category, namely
regulatory acts.
Thus, not all acts of general application are “regulatory acts”:
44. The first paragraph of Article 263 TFEU sets out a number of categories
of acts of the European Union which may be subject to a review of legality,
namely, first, legislative acts and, secondly, other binding acts intended to
59 6th ed.

produce legal effects vis-à-vis third parties, which may be individual acts or
acts of general application.
45. It must be concluded that the fourth paragraph of Article 263 TFEU,
read in conjunction with its first paragraph, permits a natural or legal person
to institute proceedings against an act addressed to that person and also
(i) against a legislative or regulatory act of general application which is of
direct and individual concern to them and (ii) against certain acts of general
application, namely regulatory acts which are of direct concern to them and
do not entail implementing measures.
50. ... As is apparent from the analysis in the preceding paragraphs, the
wording of the fourth paragraph of Article 263 TFEU does not allow
proceedings to be instituted against all acts which satisfy the criteria of
direct concern and which are not implementing measures or against all acts
of general application which satisfy those criteria, but only against a specific
category of acts of general application, namely regulatory acts.
Consequently, the conditions of admissibility of an action for annulment of
a legislative act are still more restrictive than in the case of proceedings
instituted against a regulatory act....
The General Court referred inter alia to the drafting history of the Draft Treaty
Establishing a Constitution for Europe where “regulatory acts” were defined as
different to legislative acts and whereby it was intended to maintain a restrictive
approach to challenges to legislative acts:
56. In view of the foregoing, it must be held that the meaning of “regulatory
act” for the purposes of the fourth paragraph of Article 263 TFEU must be
understood as covering all acts of general application apart from legislative
acts. Consequently, a legislative act may form the subject-matter of an
action for annulment brought by a natural or legal person only if it is of direct
and individual concern to them.
The General Court then turned to a consideration of the contested Regulation. It

noted (at [59]) that the contested Regulation had been adopted on the basis of the
Ordinary Legislative Procedure60 and said:
63. According to settled case-law the test for distinguishing between a

regulation and a decision is whether or not the measure is of general
application. A measure is of general application if it applies to objectively
determined situations and produces legal effects with respect to categories
of persons envisaged generally and in the abstract (see order of the
General Court of 30 November 2009 in Case T-313/08 Veromar di Tudisco
60The General Court referred to the contested Regulation being adopted on the basis of the co-
decision procedure. Co-decision became the Ordinary Legislative Procedure in the Lisbon Treaty.

Alfio & Salvatore v Commission, not published in the ECR, paragraph 38
...
65 However, in the present case, it is not the general application of the

contested regulation which is at issue, but the claim that it should be
categorised as a regulatory act. Although the test for distinguishing
between an act of general application and an individual act is whether the
act in question is of general application, its categorisation as a legislative
act or a regulatory act according to the FEU Treaty is based on the criterion
of the procedure, legislative or not, which led to its adoption.
Thus, whether an act is a legislative or a regulatory act depends on the procedure

used to adopt the act. Here the Regulation, adopted on the basis of a legislative
procedure was to be categorised as a legislative act. The contested Regulation
was not a “regulatory act” within the meaning of Article 263(4) TFEU.
Consequently, for this action to be admissible the applicants would have to satisfy
both the direct and individual concern tests. Article 3(1) of the contested regulation,
which constituted the central provision of that regulation, provides that “[t]he
placing on the market of seal products shall be allowed only where the seal
products result from hunts traditionally conducted by Inuit and other indigenous
communities and contribute to their subsistence”.
The General Court considered that a small number of applicants were directly
concerned as those persons were active in placing EU seal products on the
market. The General Court held that their legal situation must be regarded as being
affected by the general prohibition of the placing on the market of seal products
provided for by the contested regulation.
The General Court then went on to consider whether this limited number of directly
concerned applicants was individually concerned. The General Court applied the
Plaumann test. The General Court considered that the applicants were concerned
by the contested Regulation like any other trader who places seal products on the
market. The exception in the Regulation in respect of Inuit products was not
enough to distinguish them individually in the same way as an addressee of a
decision. The applicants were not individually concerned, and the action was
declared inadmissible.
The General Court affirmed its Inuit judgment in Microban International Ltd. v.
Commission (T-262/10) in assessing the meaning of “implementing measures”.
Citing Inuit, it said:
21… it must be recalled that, according to the case-law, the meaning of

“regulatory act” for the purposes of the fourth paragraph of Article 263
TFEU must be understood as covering all acts of general application apart
from legislative acts …

The Court held that “implementing measures” related to any intervention in the
application of a non-legislative act of the Commission by either the Commission
itself or a Member State.
The applicants in Inuit appealed, however, to the CoJ against the decision of the
General Court in Inuit Taparitt Kanatami and Others v. European Parliament and
Council [2013] ECR I nyr, 3 October 2013 (C-583/11P). One of the grounds of
appeal was that the interpretation given to the term “regulatory act” in Article 263
TFEU by the General Court was erroneous. Advocate General Kokott delivered
her Opinion in the appeal on 17th January 2013 and considered that the General
Court had interpreted “regulatory acts” correctly.
The Court of Justice considered the issue of whether the General Court had erred
in concluding that the concept of “regulatory” act within the meaning of Article
263(4) TFEU refers to acts of general application other than legislative acts. The
Court of Justice held:
58. As regards the concept of “regulatory act”, it is apparent from the third
limb of the fourth paragraph of Article 263 TFEU that its scope is more
restricted than that of the concept of “acts” used in the first and second
limbs of the fourth paragraph of Article 263 TFEU, in respect of the
characterisation of the other types of measures which natural and legal
persons may seek to have annulled. The former concept cannot, as the
General Court held correctly in paragraph 43 of the order under appeal,
refer to all acts of general application but relates to a more restricted
category of such acts. To adopt an interpretation to the contrary would
amount to nullifying the distinction made between the term “acts” and
“regulatory acts” by the second and third limbs of the fourth paragraph of
Article 263 TFEU.
61. The General Court was therefore correct to conclude that the concept
of “regulatory act” provided for in the fourth paragraph of Article 263 TFEU
does not encompass legislative acts.
The Court of Justice refused the appeal on this ground.
As was discussed earlier61, the CoJ also rejected the argument that the Regulation
was of individual concern to the applicants emphasising that the “individual
concern” test had not been altered in the Lisbon Treaty. The test remained the
Plaumann test as per the settled case-law and the Court noted (at [74]), “the
prohibition on placing seal products on the market laid down in the contested
Regulation is worded in general terms and applies indiscriminately to any trader
falling within its scope.”
The third ground of appeal related to the argument that the strict interpretation of
“individual concern” by the CoJ prevented the applicants from access to an
61 See chapter 10.5.9.

effective remedy. This argument was also rejected as unfounded. This issue is
discussed further below.
The Court of Justice dismissed the appeal in its entirety.
Building on the earlier decision in Inuit Taparitt Kanatami in the Grand Chamber
judgment of the Court of Justice in T & L Sugars Ltd v. European Commission
ECLI:EU:C:2015:284 (Case C‑456/13 P) of 28th April, 2015, the CoJ provided
further clarification as to the extent of ‘implementing measures’ for the purposes of
Article 263(4) TFEU.
The appellants were cane sugar refiners established in the EU. In light of the sugar
shortage and resulting increases in sugar prices in the EU in 2011, the
Commission sought to increase the supply of sugar on the EU market. It adopted
several regulations containing detailed emergency measures for the release of out-
of-quota sugar and isoglucose in the EU and introduced an import tariff quota for
sugar.
The appellants were negatively affected by these regulations and alleged that they
were discriminatory and incapable of eliminating the import deficit. Accordingly,
they brought an action for annulment in accordance with Article 263(4) TFEU
before the General Court. They also sought an order that the Commission
compensate them for the loss which they suffered following adoption of the
contested regulations.
They argued they had standing to bring said action on the basis of direct concern
(they would have failed in proving they were individually concerned by the
contested regulations), and thus the appellants had to establish that the offending
provisions were regulatory regulations and entailed no implementing measures.
The appellants stressed that every detail of the contested regulations was
determined by the Commission and that Member States merely functioned as ‘mail
boxes.’
The General Court dismissed their action on the basis that measures taken
constituted implementing measures within the meaning of Article 263(4) TFEU and
the appellants appealed this finding to the CoJ on the basis, inter alia, that the
General Court misinterpreted the concept of an ‘act not entailing implementing
measures’ per Article 263(4) TFEU.
Direct Concern
The CoJ acknowledged (at [38]) that as the General Court did not examine whether
the regulations were of direct concern to the appellants and based its finding of
inadmissibility on the fact that said regulations entailed implementing measures
within the meaning of the final limb of Article 263(4) TFEU, it made an error of law.
However, as Regulation No 222/2011 and Implementing Regulation No 293/2011
were not of direct concern to the appellants within the meaning of the final limb of
Article 263(4) TFEU, said error of law was not such as to entail the setting aside

of the judgment as regards the inadmissibility of the action against those
regulations (para.39).
Furthermore, the CoJ held that the regulations produced their legal effects vis-à-
vis the appellants only through the intermediary of acts taken by the national
authorities following the submission of applications for certificates. The
decisions of national authorities in granting or denying such certificates in full or in
part was thus held to constitute implementing measures within the meaning of
Article 263(4) TFEU. The CoJ held that this was not called into question by the
mechanical nature of the measures taken at the national level:
40. However, Implementing Regulations No 302/2011 and No 393/2011

produce their legal effects vis-à-vis the appellants only through the
intermediary of acts taken by the national authorities following the
submission of applications for certificates on the basis of Implementing
Regulation No 302/2011. The decisions of the national authorities granting
such certificates, which apply the coefficients fixed by Implementing
Regulation No 393/2011 to the operators concerned, and the decisions
refusing such certificates in full or in part therefore constitute implementing
measures within the meaning of the final limb of the fourth paragraph of
Article 263 TFEU.
41. That conclusion is not called into question by the allegedly mechanical
nature of the measures taken at national level.
42. As the General Court rightly held in paragraph 53 of the judgment under
appeal, that question is irrelevant in ascertaining whether those regulations
entail implementing measures within the meaning of the final limb of the
fourth paragraph of Article 263 TFEU.
Referring to Inuit Tapiriit Kanatami the CoJ held at para. 44 that conditions of
admissibility per Article 263(4) TFEU must be interpreted in the light of the
fundamental right to effective judicial protection, but such an interpretation cannot
have the effect of setting aside those conditions, which are expressly laid down in
the Treaty.
The CoJ further held at para. 49 that as regards persons who do not fulfil the
requirements of Article 263(4) TFEU for bringing an action before the CJEU, it was
for the Member States to establish a system of legal remedies and procedures
ensuring respect for the fundamental right to effective judicial protection.
Individual Concern
Summarising the current position about the standing of litigants under Article
263(4) TFEU, and, in asserting that the appellants were not individually concerned
by the measures at issue, the Court held: -
62. Under the fourth paragraph of Article 263 TFEU, natural or legal
persons may institute proceedings against an act which is not addressed

to them and entails implementing measures only if that act is of direct and
individual concern to them.
63. As regards the second of those conditions, that is to say, being

individually concerned by the act in question, it is settled case-law that
persons other than those to whom a decision is addressed may claim to be
individually concerned only if that decision affects them by reason of certain
attributes which are peculiar to them or by reason of circumstances in
which they are differentiated from all other persons and by virtue of these
factors distinguishes them individually just as in the case of the person
addressed (judgments in Plaumann v Commission, 25/62, EU:C:1963:17,
223; Inuit Tapiriit Kanatami and Others v Parliament and Council,
C-583/11 P, EU:C:2013:625, paragraph 72; and Telefónica v Commission,
C-274/12 P, EU:C:2013:852, point 46).
64. It is also clear from settled case-law that the possibility of

determining more or less precisely the number, or even the identity,
of the persons to whom a measure applies by no means implies that
it must be regarded as being of individual concern to them as long as
that measure is applied by virtue of an objective legal or factual
situation defined by it (see, to this effect, judgments in Antillean Rice Mills
v Council C-451/98, EU:C:2001:622, paragraph 52, and Telefónica v
Commission, C-274/12 P, EU:C:2013:852, paragraph 47). [Emphasis
added.]
Finally, in European Union Copper Task Force v. European Commission

ECLI:EU:C:2018:176 (C-384/16P) the Grand Chamber provided significant clarity
as regards the third limb of Article 263(4) TFEU:
35 . . . the expression ‘which … does not entail implementing measures’,

within the meaning of the final limb of the fourth paragraph of Article 263
TFEU, must be interpreted in the light of the objective of that provision,
which is, as is apparent from its drafting history, to ensure that individuals
do not have to break the law in order to have access to a court. Where a
regulatory act directly affects the legal situation of a natural or legal person
without requiring implementing measures, that person could be denied
effective judicial protection if he did not have a legal remedy before the
European Union judicature for the purpose of challenging the legality of the
regulatory act. In the absence of implementing measures, natural or legal
persons, although directly concerned by the act in question, would be able
to obtain a judicial review of that act only after having infringed its
provisions, by pleading that those provisions are unlawful in proceedings
initiated against them before the national courts (judgment of 28 April 2015,
T & L Sugars and Sidul Açúcares v Commission, C-456/13 P,
36 By contrast, where a regulatory act entails implementing measures,

judicial review of compliance with the European Union legal order is
ensured irrespective of whether those measures were adopted by the
European Union or the Member States. Natural or legal persons who are

unable, because of the conditions governing admissibility laid down in the
fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the
European Union directly before the European Union judicature are
protected against the application to them of such an act by the ability to
challenge the implementing measures which the act entails (judgment of
28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C-456/13
P, EU:C:2015:284, paragraph 30 and the case-law cited).
37 Where responsibility for the implementation of such acts lies with the
institutions, bodies, offices or agencies of the European Union, natural or
legal persons are entitled to bring a direct action before the European
Union judicature against the implementing acts under the conditions stated
in the fourth paragraph of Article 263 TFEU, and to plead in support of that
action, pursuant to Article 277 TFEU, the illegality of the basic act at issue.
Where that implementation is a matter for the Member States, those
persons may plead the invalidity of the basic act at issue before the national
courts and tribunals and cause the latter to request a preliminary ruling from
the Court of Justice, pursuant to Article 267 TFEU (judgment of 28 April
2015, T & L Sugars and Sidul Açúcares v Commission, C-456/13 P,
38 As the Court has already held, whether a regulatory act entails

implementing measures should be assessed by reference to the position
of the person pleading the right to bring proceedings under the final limb of
the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether
the act in question entails implementing measures with regard to other
persons (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v
Commission, C-456/13 P, EU:C:2015:284, paragraph 32 and the case-law
cited).
39 Furthermore, in the context of that assessment, it is necessary to refer

exclusively to the subject matter of the action and, where an applicant
seeks only the partial annulment of an act, it is solely any implementing
measures which that part of the act may entail that must, as the case may
be, be taken into consideration (judgment of 10 December 2015, Kyocera
Mita Europe v Commission, C‑553/14 P, not published, EU:C:2015:805
paragraph 45 and the case-law cited)…
45 In that regard, it must be observed that the fact that a regulatory act of
the European Union entails implementing measures, within the meaning of
the final limb of the fourth paragraph of Article 263 TFEU, such that certain
legal effects of the regulation only materialise through those measures,
does not exclude that that regulation produces, in the legal situation of a
natural or legal person, other legal effects, which do not depend on the
adoption of implementing measures.
In Friends of the Irish Environment CLG v. Minister For Communications Climate

Action and the Environment & Ors. [2020] IEHC 383, Simons J engaged (at [36]–
[58]) in a masterful discussion of Article 263 TFEU that students are encouraged
to read.

The matter related to proceedings brought by the applicants specifically to request
that the High Court make a reference to the Court of Justice for a preliminary ruling
to determine validity of 4th Union list of Projects of Common Interest (PCIs)
adopted by Commission Delegated Regulation (EU) 2020/389 as it included the
proposed Shannon LNG terminal and connecting pipeline.
Simons J. explored at length the interaction between Articles 267 and 263 TFEU,
as well as whether proceedings were intended as vehicle to bring the issue before
Court of Justice and whether the applicant could seek to invoke the preliminary
reference procedure to initiate a challenge to EU legislation notwithstanding the
absence of any national implementing measure or decisions.
His findings are unequivocal in this regard:
69. . . . on the facts of the present case, the sole function of the national
court would be to refer the question of the validity of the delegated
regulation to the Court of Justice. The Court of Justice would then
determine that issue itself. Thereafter, there would be no outstanding issue
remaining to be determined by the national court. This is because there is
no underlying dispute before the High Court, the outcome of which turns
on the validity of the delegated regulation. The applicant has not identified
any implementing measure or decision on the part of any national authority
which gives effect to the delegated regulation. Rather, the entire purpose
of the judicial review proceedings is to seek to have the delegated
regulation annulled by the Court of Justice. The proceedings are intended
merely as a vehicle by which to bring this issue before the Court of Justice.
71. The fatal flaw in the applicant’s argument is that a reference

pursuant to Article 267 TFEU is not “necessary” to enable the High Court
to give judgment. The High Court is not seised of any underlying dispute in
respect of which it has jurisdiction to deliver judgment. In truth, the only
issue in controversy is the validity of the delegated regulation. This is not a
controversy which the High Court has jurisdiction to determine, and, in any
event, the legitimus contradictor to this controversy, the European
Commission, is not a party to these proceedings. There is simply nothing
of substance in these proceedings in respect of which the High Court could
deliver judgment…
109. . . . the applicant has been unable to identify any decision or

implementing measure at national level which is capable of forming the
basis of an action before the High Court.
110. In truth, the only issue in controversy is the validity of the delegated
regulation. This is not a controversy which the High Court has jurisdiction
to determine, and, in any event, the legitimus contradictor to this
controversy, the European Commission, is not a party to these
proceedings. The High Court is not seised of any underlying dispute in
respect of which it has jurisdiction to deliver judgment. In all the
circumstances, a preliminary reference pursuant to Article 267 TFEU
cannot be said to be “necessary” to enable the High Court to give judgment.

111. The application for a preliminary reference is therefore refused. The
associated declaratory relief, to the effect that the Irish State is under an
obligation to provide a dedicated and suitable mechanism by which the
validity of a decision of the European Commission can be raised,
irrespective of whether there is also an infringement by the national
authorities, is also refused.”
5.10.2 Other acts

Acts which do not fall into either the category of being addressed to the individual
or the category of regulatory acts not entailing implementing measures must satisfy
both the direct and individual concern tests. These tests have not been modified
by the Lisbon Treaty.
6. Grounds of Challenge/Types of Illegality

The grounds of illegality go to the validity of the act being challenged.
It shall for this purpose have jurisdiction in actions brought by a Member

State, the European Parliament, the Council or the Commission on grounds
of lack of competence, infringement of an essential procedural
requirement, infringement of the Treaties or of any rule of law relating to
their application, or misuse of powers.
It is useful to consider on what grounds an act may be challenged. The Treaty

provides for four possible grounds of review. To succeed in having an act annulled
an applicant will have to show one of the types of illegality listed in Article 263(2)
TFEU. The grounds are broad grounds. Sometimes in its decisions the Court of
Justice does not state which of the grounds is involved when it annuls a measure.
6.1 Lack of Competence
The principle of conferred powers governs the existence of EU powers. The EU

is not empowered to act beyond the reach of powers conferred on it by the Member
States. The principle of conferred powers will be breached if the EU purports to
exercise a power that has not been transferred to it62.
The EU institutions must act within the powers conferred on them. Chalmers states
(at 402), “[a]n EU institution will be found to have acted illegally if it has exceeded
the legal powers granted to it. This is relatively rare. The Union has very broad
powers …”63
The powers can be explicit or implicit. If an EU institution is unable to point to a

power on which it acts, the act will be declared void for lack of competence.
62 Article 5 TEU.
63 2nd ed.

The basis for the EU institution to act must be in the Treaties or another legal act
based on the Treaties. Germany and Others v. Commission [1987] ECR 3203
(Cases 281, 283-5 and 287/85) is one the few examples of where an act has been
declared void (in part) for lack of competence. Five Member States sought
annulment of Commission Decision 85/381, a Social Policy Decision dealing with
immigration from non-Member States on the basis that the Commission lacked
competence. The Decision set up a prior communication and consultation
procedure on migration policies in relation to non-member countries. Member
States were to advise the Commission and other Member States of draft measures
and agreements. The Member States contesting the Decision argued that
migration policy from third countries did not fall within the social policy field nor any
other Treaty field of competence or alternatively that the policy only fell partly within
the social policy field.
The Decision was declared void in part. The Commission had [limited] power to
make legally binding Decisions although not expressed in the Treaty article
providing the legal basis for the Decision. However, the legal basis only covered
part of the subject matter of the Decision and the Decision was declared void in
part. The CoJ held that the promotion of integration of third country workers fell
within the social protection field but that the cultural integration of immigrant
communities, which did not distinguish between migrant workers and other
foreigners, went beyond the social field. The CoJ declared Commission Decision
85/381/EEC of 8 July 1985 setting up a prior communication and consultation
procedure on migration policies in relation to non-member countries void in part,,
insofar as the Commission lacked competence (a) to extend, by means of Article
1, the scope of the communication and consultation procedure to cover matters
relating to the cultural integration of workers from non-member States and
members of their families, and (b) to provide, in the second indent of Article 3, that
the objective of the consultation is to ensure that the draft national measures and
agreements are in conformity with Community policies and action. The CoJ
dismissed the remainder of the application.
Each institution must act in accordance with the powers conferred on it.
Delegations of some powers are permissible: Meroni and Co. Industrie
Metallurgiche SpA v. ECSC [1957-8] ECR 133 (Case 9/56). The Council was
permitted to delegate implementing powers to the Commission.64 The
Commission can delegate administrative and management powers to members,
but it cannot delegate decisions of principle.
In ICI v. Commission (Dyestuffs) [1972] ECR 661 (Case 48/69), it was argued that
the Commission lacked competence to impose fines for infringing EC competition
law in respect of its trade within the EC, on a company whose seat was outside
the EC but which operated within the EC. The CoJ held that there was jurisdiction.
The power of judicial review by the CoJ extends to Article 5 TEU. Legally binding
acts can be challenged on the basis that they do not comply with the principle of
subsidiarity; UK v. Council [1996] ECR I 5755 (Case C-84/94).
64Post-Lisbon, it is legislative acts which delegate to the Commission the power to adopt delegated
acts. See Article 290 TFEU.

Another example of an EU institution acting where it lacked competence was Boyle
v. Commission [2006] ECR II-1699 (Joined cases T-218-240/03). Irish fishermen
successfully challenged a Commission Decision which introduced new criteria to
be applied for funding within the context of the common fisheries policy. The
parent legislation did not afford the Commission the authority to introduce these
new criteria and the Decision was successfully challenged.
6.2 Infringement of an essential procedural requirement
Only failure to comply with an essential procedural requirement will lead to

annulment. The Court of Justice case-law includes examples of procedural
requirements which have been held by the Court of Justice to be essential and
others which have been held to be non-essential. Schermers and Waelbroek give
(at 376) the following examples of acts accepted as valid: not breaching an
“essential” procedural requirement; a verbal (rather than a written) decision; an act
which did not correctly state its legal basis; a decision containing an error as to the
date on which it was adopted; and a Council Directive in which no reference had
been made to the proposal of the Commission. If an act is accepted as valid and
not in breach of an “essential” procedural requirement the act will not be annulled.
Examples of infringements of procedural requirements held to be “essential”

include a Regulation adopted without the required consultation with the European
Parliament: Roquette Frères SA v. Council [1980] ECR 3333 (Case 138/79); a
Commission Decision concerning an exemption introducing a requirement of a
notification of links between companies without affording the affected companies
a right to be heard: Transocean Marine Paint v. Commission [1974] ECR 1063
(Case 17/74); a Commission Decision in breach of the duty to provide reasons:
Germany v. Commission [1963] ECR 63 (Case 24/62); and a Regulation adopted
in breach of obligation to state reasons and on an incorrect legal basis:
Commission v. Council (Tariff Preference) [1987] ECR 1493 (Case 45/86). In
those cases, the legal act at issue was held to be void and was annulled.
6.3 Infringement of the Treaties or of any rule of law relating to their

application
There is some overlap between this ground and the two previous grounds.
Under Article ex Article 230 EC there was no power to review acts adopted under
the Pillars 2 (CFSP) and 3 (PJCC). Ex Article 230(2) EC expressly referred to
“infringement of the Treaty or any rule of law relating to its application.” [Emphasis
added.] The Treaty of Amsterdam afforded, the Court of Justice a limited power
pursuant to ex Article 35(6) TEU to review certain acts under the Third Pillar.
With the abolition of the Pillars, and as was noted above Post-Lisbon, with the
exception of the areas covered by Article 276 TFEU, acts adopted under ex Pillar
Three (PJCC) are subject to review for legality by the CoJ. Craig and de Búrca
note (at 513) that post-Lisbon “[t]he general principle is that the Union Courts have
no jurisdiction over CFSP acts.”65
65 6th ed.

In Commission v. Council (Airport Transport Visas) [1998] ECR I 2763 (Case C-
170/96) it was determined that the CoJ could review acts made under TEU when
it is claimed they should have been made under the EC pillar.
Chalmers states (at 439) that this ground can include breaches of fundamental
rights, proportionality, non-discrimination, legal certainty, and legitimate
expectations, in addition to breaches of the Treaties or pieces of binding secondary
legislation.66
On November 9, 2016, Ireland invoked Article 263 TFEU in seeking to annul

European Commission Decision SA.38373—Alleged Aid to Apple—of August 30,
2016 wherein the European Commission held that Ireland granted undue tax
benefits of up to €13 billion to technology giant Apple.
The Commission asserted that this was illegal under EU state aid rules, inter alia,
at Article 107 TFEU, as it allowed Apple to pay substantially less tax than other
businesses, thereby affording Apple a significant advantage over other businesses
that were subject to the same national taxation rules. The Commission Decision
stated that Ireland’s tax treatment of Apple allowed the company to pay an effective
corporate tax rate of 1% on its European profits in 2003 down to 0.005% in 2014.
Accordingly, Ireland was required to recover the illegal aid
Ireland’s challenge to this Decision asserted, inter alia, that the Revenue
Commissioners acted in accordance with the law, treating all taxpayers equally;
that the European Commission’s decision amounted to an intrusion into Ireland’s
sovereignty in circumstances where taxation remains a Member State
competence; and that the Commission sought to retrospectively apply the OECD
Guidelines on “arms length standards”- which came into effect in 2010 – to an
opinion issued by the Revenue Commissioners in 1991, thereby undermining legal
certainty.67 Apple and Ireland succeeded in their action for annulment in the
General Court (Alleged Aid to Apple (Cases T-778/16 and T-892/16;
EU:T:2020:338). However, the European Commission is appealing the General
Court’s ruling to the Court of Justice alleging “contradictory reasoning” by that court
(Case C-465/20 P).
6.4 Misuse of Powers
In Gutmann v. Commission [1966] ECR 103 (Cases 18, 35/65) the CoJ stated: “A
decision may amount to an abuse of powers if it appears on the basis of objective,
relevant and consistent facts, to have been taken for purposes other than those
stated.”
The applicant was a EURATOM official transferred on the basis of a provision

which authorised the transfer of individuals “in the interests of the service”. The
Court of Justice held that the real reason for transferring him was for disciplinary
purposes. The decision was therefore annulled for misuse of powers.
663rd ed.
67McGee, Harry, “Apple Tax Appeal: The three arguments Government to use”, The Irish Times,
September 3, 2016, available at http://www.irishtimes.com/business/economy/apple-tax-appeal-
the-three-arguments-government-to-use-1.2777679.

In UK v. Council (Working Time Directive) [1996] ECR I 5755 (Case C-84/94)68,
the Court of Justice referred to a decision taken “with the exclusive 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.” Early
proposals in respect of the Council Directive 93/104 concerning certain aspects of
the organisation of working time focused on the impact it would have on
employment opportunities. The Directive, as enacted, focused on health and
safety. The health and safety legal basis permitted Qualified Majority Voting rather
than Unanimity. The UK argued that the Directive ought to have been adopted on
the basis of a legal basis requiring unanimity. On the choice of legal basis
argument, the CoJ determined that one sentence of the Directive should be
annulled. This sentence concerned the choice of Sunday as a rest day. The CoJ
held that the Council had failed to explain why Sunday was more closely connected
with the health and safety of workers than any other day of the week. One of the
other arguments put forward by the UK was that there had been misuse of powers.
The CoJ stated:
69 The Court's case-law (see, in particular, Case C-156/93 Parliament v

Commission [1995] ECR I-2019, paragraph 31) defines misuse of powers
as the adoption by a Community institution of a measure 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.
The CoJ considered that this was not the case with the Working Time Directive,
since the UK had not established that it was adopted with the exclusive or main
purpose of achieving an end other than the protection of the health and safety of
workers. Therefore, the misuse of powers plea was rejected.
Giuffrida v. Council [1976] ECR 1395 (Case 105/75) concerned a job application.
The specified requirements in the advertisement for the job, meant only one
individual was capable of being appointed. It was held that the rigging of
competition constituted a misuse of powers and the decision to appoint that
individual was annulled.
6.5 Rights of Process
Chalmers recategorises (at 428 and 433-439) the grounds of review and lists
“rights of process” as a category.69 He discusses a number of procedural rights
which apply across all fields of EU Law: rights of the defence; right to a hearing;
and the right to good administration.
In Kadi v. Council [2008] ECR I 6351 (Joined Cases C-402/05 P and C-415/05 P),
The CoJ struck down EU Regulations implementing UN Security Council
Resolutions adopted after the September 11, 2001 attacks in the US which
required States to freeze assets of those associated with the Taliban, Osama bin
Laden or Al-Qaeda. The applicants were named on the UN list. The CoJ
68 See chapter 3.5.2 of the Manual.

69 3rd ed.

determined that the EU measures violated the right to be heard and the right to an
effective remedy and that the contested act should be annulled.70
7. Time Limit
The proceedings provided for in this Article shall be instituted within two
months of the publication of the measure, or of its notification to the plaintiff,
or in the absence thereof, of the day on which it came to the knowledge of
the latter, as the case may be.
Article 263(6) TFEU sets out a two-month time-limit for the purposes of instituting
an action pursuant to Article 263 TFEU.
In the recent matter of United Kingdom v. European Central Bank (T-496/11) the
General Court outlined the consequences where the two-month limit is exceeded
at para. 61 that: -
… it is clear from the final paragraph of Article 263 TFEU — according to

which an action for annulment must be brought within two months of the
publication or notification of the contested measure or, in the absence
thereof, of the date on which it came to the applicant’s knowledge, as the
case may be — that a measure which has not been challenged within that
period becomes definitive and that that definitiveness concerns not only the
measure itself, but also any later measure which is merely confirmatory.
That approach, which is justified by the requirement of legal stability,
applies to individual measures as well as those which have a legislative
character, such as a regulation. The Court of Justice pointed out, however,
that where a provision in a regulation is amended, a fresh right of action
arises, not only against that provision alone, but also against all the
provisions which, even if not amended, form a whole with it (judgment of
18 October 2007 in Commission v Parliament and Council, C‑299/05,
ECR, EU:C:2007:608, paragraphs 28 to 30).
8. Article 264 TFEU
Article 264 TFEU71 provides:
If the action is well founded, the Court of Justice of the European Union
shall declare the act concerned to be void.
However, the Court shall, if it considers this necessary, state which of the
effects of the act which it has declared void shall be considered as
definitive.
70 See chapters 4 and 7 of the Manual.


Article 264 TFEU sets out the consequences of a successful Article 263 TFEU
action, that the challenged act will be declared void.
Article 264(2) TFEU allows the CoJ to determine that only part of a measure is
invalid or to place temporal limitations on its judgment.
9. Relationship between Article 263 TFEU and 267 TFEU

Preliminary rulings are an important method of indirectly challenging the validity of
a Community act.
Article 267(1)(b)72 provides:
The Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings concerning …
(b) The validity and interpretation of the acts of the institutions, bodies,
offices or agencies of the Union …
This provision had assumed increased importance because of the restrictive

interpretation of locus standi under ex Article 230.73 Also there is no time limit under
Article 267 TFEU.
A Direct action under Article 263 TFEU might not be possible because:
(i) Time limit of two months may have passed

(ii) Lack of locus standi
(iii) Individual’s interest only likely to arise where its own activities are
affected by EU action.
Article 267(1)(b) allows a challenge to be made to the validity of Community acts.

The issue arises as to whether the possibility of an Article 263 TFEU action
precludes an indirect challenge under Article 267 TFEU?
In Universitat Hamburg v. Hauptzollamt Hamburg Kehrweider [1983] ECR 2771

(Case 216/82) (scientific equipment) the EU measure at issue was a Commission
Decision addressed to all Member States refusing to allow an exemption from
customs duty for scientific equipment imported from the US. As such, it was not
specifically addressed to the University of Hamburg. The German authorities
applied this decision and refused the exemption. The University of Hamburg
sought to contest the measure before the national courts. In this instance, CoJ
held that the case could be brought by way of a now Article 267 TFEU reference.
The Court of Justice was influenced by the fact that the Commission decision did
not have to be published and that it did not have to be notified to persons applying
for the tax exemption. Both of these factors would have rendered a challenge
within the time limit provided for under Article 263 TFEU virtually impossible. The
applicant would only have found out about the Commission’s decision when the
72 Ex Article 234(1)(b).
73 See Craig and de Búrca, (3rd ed), at 528.

decision of the national authority based on the Commission’s decision would have
been notified to it.
In Walter Rau Lebensmittelwerke v. Bundesanstalt fur Landwirtschaftliche

Marktordnung [1987] ECR 2289 (Cases 133-136/85) (Margarine) the challenge
was to a national decision based on a Commission Decision addressed Germany.
The facts concerned a free butter scheme with free butter to be bundled with butter
with the result that the purchaser bought two packets of butter for the price of one.
The issue arose as to whether it was possible to challenge the measure
implementing the decision in a national court on the ground that the decision was
unlawful. The CoJ held that the possibility of challenging Decision directly in CoJ
did not preclude possibility of challenging a decision implementing measure in
national court with the possibility of the national court making a preliminary
reference.
That decision must however be considered in light of the decision in TWD

Textilwerke Deggendorf GmbH v. Germany [1994] ECR I 833 (Case C-188/92).
The Commission declared aid which Germany had paid to TWD to be incompatible
with the common market. TWD would have to repay the aid. Germany informed
the company and also told them that the Commission decision (saying that aid had
to be repaid) could be challenged under Article 263 TFEU. A letter from the
German Minister for Economic Affairs forwarded to TWD a copy of the Commission
decision and pointed out that it could bring an action against that decision under
Article 263 TFEU. TWD did not institute proceedings to challenge the Decision
under Article 263 TFEU. Germany subsequently asked TWD to repay the aid.
TWD sought to appeal this decision arguing inter alia that the Commission
Decision was partly unlawful. TWD sought to raise the issue in the national court.
The national court referred questions under Article 267 TFEU, asking whether it
was bound by the Commission Decision when hearing the appeal regarding
the implementation by the national authorities where the recipient of the aid
had not instituted proceedings under Article 263 TFEU or had not done so in
good time, even though the recipient of the aid was informed of the Commission
decision in writing by the German authorities.
The CoJ determined that no indirect challenge to the validity of the Decision was
possible where TWD had been informed of its right to challenge the legality of the
decision under Article 263 TFEU and where there was no doubt that it would have
had locus standi to do so.
In Georgsmarianhütte Case C-135/16; ECLI:EU:C:2018:582 the Grand Chamber

was called upon to clarify its decision in TWD. It ruled on the admissibility of a
request for a preliminary ruling concerning the validity of a decision of the
Commission declaring State aid to be unlawful, where the party relying on
the invalidity of that decision before the referring court had not brought an
action for annulment against the decision before the General Court, even
though it had standing to do so under Article 263 (4) TFEU, but in a situation
in which it was not, at first sight, excluded that the action before the referring court
had been brought within the period laid down in Article 263(6) TFEU.
The Court held that while the applicants undoubtedly had standing to seek the
annulment under Article 263(4) TFEU, they had not brought proceedings before

the General Court and therefore could not rely on the invalidity of that decision in
support of their actions before the referring court against the national measures
implementing that decision. Since the validity of the contested decision had not
been properly challenged before the referring court, the request for a preliminary
ruling on the validity of that decision was inadmissible.
Thus, it seems that an indirect challenge under Article 267 TFEU will not be
possible if the person would have had standing (locus standi) to bring an action
under Article 263 TFEU where the individual knew of the matter within the time
limits of the direct action and where it is clear that the individual would have had
standing. In those circumstances the applicant is time barred from pleading the
unlawfulness of the Commission’s decision in support of an action brought in the
national court, against the administrative act implementing the EU decision.
The Decision becomes definitive after time period has passed.
In R v. Intervention Board for Agricultural Produce, ex parte Accrington Beef [1996]

ECR I 6691 (Case C-241/95) the Court of Justice held that an indirect challenge
under Article 267 TFEU to a Regulation (setting out rules on the importation of
frozen beef) was possible where it was unclear whether the company would have
had locus standi as an applicant under Article 263 TFEU.
In Eurotunnel SA v. Sea France [1997] ECR I 6315 (Case C-408/95) the Court of
Justice held that a non-privileged applicant could indirectly challenge the validity
of provisions of a Directive in a Member State as Directives are addressed to
Member States and it was not obvious that an action under Article 263 TFEU
would have been possible.
In cases such as Unión de Pequenos Agricultores v. Council [2002] ECR I 6677

(Case C-50/00 P), the Court of Justice has often emphasised, when denying the
possibility of an Article 263 TFEU direct challenge, the possibility of an indirect
challenge through Article 267 TFEU. In that case, the Court stated (at [40]):
By [Article 263 TFEU] and [Article 277 TFEU74], on the one hand, and by
[Article 267 TFEU], on the other, the Treaty has established a complete
system of legal remedies and procedures designed to ensure judicial
review of the legality of acts of the institutions, and has entrusted such
review to the Community Courts (see, to that effect, Les Verts v Parliament,
paragraph 23). Under that system, where natural or legal persons cannot,
by reason of the conditions for admissibility laid down in the fourth
paragraph of Article [263 TFEU] of the Treaty, directly challenge
Community measures of general application, they are able, depending on
the case, either indirectly to plead the invalidity of such acts before the
Community Courts under Article [277 TFEU] of the Treaty or to do so before
the national courts and ask them, since they have no jurisdiction
74 Ex Article 241 EC. Article 277 TFEU provides: “Notwithstanding the expiry of the period laid down
in Article 263, sixth paragraph, any party may, in proceedings in which an act of general application
adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified
in Aricle 263, second paragraph, in order to invoke before the Court of Justice of the European
Union the inapplicability of that act.”

themselves to declare those measures invalid (see Case 314/85 Foto-Frost
[1987] ECR 4199, paragraph 20), to make a reference to the Court of
Justice for a preliminary ruling on validity.
Craig and de Búrca75 point out (at 532):
The effectiveness of the indirect challenge [i.e. in a national court with an

Article 267 TFEU reference] is however limited in a number of ways. It is
dependent on the national courts being willing to make a reference to the
Court of Justice. It requires an action in at least two courts. It presupposes
that the applicant can find an appropriate defendant at national level. It can
lead to difficulties where there are references from different national courts
asking different questions about the same issue.
The difficulties were set out by Advocate General Jacobs in his Opinion in Unión
de Pequenos Agricultores v. Council [2002] ECR I 6677 (Case C-50/00 P) at
paragraph 36 et seq but it will be remembered that the Court of Justice choose not
to follow the decision of AG Jacobs.
In Jégo-Quéré et Cie v. Commission [2002] ECR II 2365 (Case T-177/01), a

particular difficulty for individual applicants was identified.
45. However, as regards proceedings before a national court giving rise to

a reference to the Court of Justice for a preliminary ruling under[Article 267
TFEU], it should be noted that, in a case such as the present, there are no
acts of implementation capable of forming the basis of an action before
national courts. The fact that an individual affected by a Community
measure may be able to bring its validity before the national courts by
violating the rules it lays down and then asserting their illegality in
subsequent judicial proceedings brought against him does not constitute
an adequate means of judicial protection. Individuals cannot be required to
breach the law in order to gain access to justice (see point 43 of the Opinion
of Advocate General Jacobs delivered on 21 March 2002 in Case C-50/00
P Unión de Pequeños Agricultores v Council..... [Emphasis added.]
The Court of First Instance’s (now called “the General Court”) decision was
overturned on appeal by the CoJ in Commission v. Jégo-Quéré et Cie. SA [2004]
ECR I 3425 (C-263/02P).
In Inuit Taparitt Kanatami and Others v. European Parliament and Council [2013]
ECR I nyr, 3 October 2013 (C-583/11P), Advocate General Kokott delivered her
Opinion in the appeal on 17th January 2013. In her Opinion, the Advocate General
explained the rationale as to why individuals do not benefit from easier access to
legal remedies against legislative acts in the system of the EU Treaties:
38. The absence of easier direct legal remedies available to individuals

against legislative acts can be explained principally by the particularly high
democratic legitimation of parliamentary legislation. Accordingly, the
distinction between legislative and non-legislative acts in respect of legal
75 3rd ed.

protection cannot be dismissed as merely formalistic; rather, it is
attributable to a qualitative difference. In many national legal systems
individuals have no direct legal remedies, or only limited remedies, against
parliamentary laws.
The Advocate General also emphasised the division of responsibilities between

the CJEU and the national courts of the Member States. She also referred (at [34])
to the second indent of Article 19(1) TEU as a Lisbon amendment strengthening
legal protection of individuals in fields covered by EU law before national courts.
From this she concluded that legal remedies against acts of general application do
not have to consist in a direct remedy before the CJEU. The argument that the
strict interpretation of “individual concern” by the CoJ prevented the applicants
from access to an effective remedy was rejected as unfounded by the CoJ.

Ireland, 2011), chapter 4, pp 118-127
2011), chapter 6, part II.
o Foster, Foster on EU Law (7th ed., Oxford University Press, 2019, chapter
6.
o Brown and Kennedy, Brown & Jacobs: The Court of Justice of the
European Communities (Sweet and Maxwell, 2000), chapter 7
o Schermers and Waelbroek, Judicial Protection in the European
Communities (6th ed., 2001), chapter 3
o Wyatt, “The Relationship between actions for Annulment and References
on Validity after TWD Deggendorf” in Lonbay and Biondi (eds.), Remedies
for Breach of EC Law (John Wiley and Sons, 1997)
o Anne Fitzpatrick, “‘The Court is not for turning’ - Citizen Access to the Court
of Justice of the European Union” IIEA Emerging Voices – A Future Of
Europe Anthology 2019 at p.79 – accessible at https://www.iiea.com/wp-
content/uploads/2019/06/The-Court-is-not-for-turning%E2%80%93-
Citizen-Access-to-the-Court-of-Justice-of-the-European-Union.pdf

Chapter 11
Free Movement of Goods (Customs Duties, Charges
having Equivalent Effect to Customs Duties) and the
Prohibition on Discriminatory Tax
1. Required Reading
University Press, 2020), chapter 19
Cambridge University Press, 2019), chapter 15, part 3
o Articles 28 and 29 TFEU
o Articles 30- 32 TFEU
o Articles 110-113 TFEU
2. Introduction
One of the main aims of the EU is that there should be free movement of goods. If
a good is manufactured in Ireland it should be capable of being sold in France on
the same basis as French goods. Equally, goods from outside the EU once they
enter the EU should enjoy free movement.
Article 3(3) TEU notes that the Union “shall” create an Internal Market.
Furthermore, Article 26 TFEU states: -
The Union shall adopt measures with the aim of establishing or ensuring
the functioning of the internal market, in accordance with the relevant
provisions of the Treaties.
The internal market shall 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 this Treaty. [Emphasis
added]
Specific Treaty provisions governing free movement of goods are in five groups:
(i) Customs duties or charges having an equivalent effect (Articles 28-

30 TFEU)1;
(ii) prevention of national taxation from discriminating against imports
Articles 110 -112 TFEU2;
(iii) Quantitative restrictions or measures having an equivalent effect on
imports and exports Articles 34-37 TFEU3;
1 Ex Articles 23-25 EC. Originally Articles 9-12 of the EEC Treaty.


(iv) The Common Customs Tariff Articles 31 and 32 TFEU4; and
(v) State aid Articles 107-109 TFEU.5
This chapter, together with the next chapter, relates to free movement of goods.
One of the main aims of the EU is to ensure the free movement of goods, persons,
services and capital.
In this chapter fiscal barriers to trade will be examined. Wyatt and Dashwood
explain (at 535):
Fiscal barriers, prohibited by [Article 30 TFEU6], are customs duties and

charges having equivalent effect to customs duties. Those charges are
imposed for the sole reason that goods have crossed a frontier. Customs
duties and charges having an equivalent effect can never be justified: this
said, the Court of Justice has held that some charges, which might at first
seem charges having an equivalent effect, do not fall within the scope of
[Article 30 TFEU] if they represent consideration for a service provided to
the importer or if they represent the cost of mandatory inspections required
by Community law. [Emphasis added.]
Craig and de Búrca state (at 638), “[t[he most obvious form of protectionism is
customs duties or charges which have an equivalent effect, to make foreign goods
more expensive than their domestic counterparts. This is dealt with in Articles 28-
30 TFEU. A state may also attempt to benefit domestic goods by taxes that
discriminate against imports. This is covered by Articles 110-113 TFEU.”7
Wyatt and Dashwood state (at 535-536):
Discriminatory or protectionist taxation is also prohibited by [Article 110

TFEU8]. Discrimination arises when similar goods are taxed in a different
way so as to benefit domestic products at the expense of imported ones.
Protectionist taxation arises when products which are in competition with
each other are taxed in such a way to afford an advantage to domestic
products .... the assessment of whether internal taxation is compatible with
Article 110 TFEU sometimes requires complex economic assessments and
in some cases taxes which appear at first sight to have a more burdensome
effect on imported products might be objectively justified by legitimate
public policy aims.
This chapter will examine customs duties or charges having an equivalent effect
governed by Articles 30- 32 TFEU9 and the prevention of national taxation from
discriminating against imports, Articles 110 -113 TFEU10.

6 Ex Article 25 EC. Originally Article 12 of the EEC Teeaty.
7 6th ed.
8 Ex Article 90 EC.
10 Ex Article 90-93 EC.

3. The Treaty Articles
3.1 The Treaty provisions on Customs Duties and Charges having an

equivalent effect to a Customs Duty (CEES)
Part III of the TFEU is entitled Union Policies and Internal Actions. It comprises
twenty-four Titles which are broken down to chapters. Title II of the TFEU is entitled
Free Movement of Goods. Title I comprises Articles 28 and 29 TFEU, Chapter 1
on The Customs Union (Articles 30, 31 and 32 TFEU), Chapter 2 on Customs
Cooperation (Article 33 TFEU), and Chapter 3 Prohibition of Quantitative
Restrictions between Member States (Articles 34-37 TFEU).
1. The Union shall comprise a customs union which shall cover all trade
in goods and which shall involve the prohibition between Member
States of customs duties on imports and exports and of all charges
having equivalent effect, and the adoption of a common customs tariff
in their relations with third countries.
2. The provisions of Article 30 and of Chapter 2 of this title shall apply to

products originating in Member States and to products coming from
third countries which are in free circulation in Member States.
Products coming from a third country shall be considered to be in free

circulation in a Member State if the import formalities have been complied
with and any customs duties or charges having equivalent effect which are
payable have been levied in that Member State, and if they have not
benefited from a total or partial drawback of such duties or charges.
[Emphasis added.]
Customs duties on imports and exports and charges having equivalent

effect shall be prohibited between Member States. This prohibition shall
also apply to customs duties of a fiscal nature. [Emphasis added.]
In the original EEC Treaty14, a distinction was drawn between the prohibition on
existing customs duties and charges having an equivalent effect (CEES) and the
prohibition on new customs duties and CEES. This distinction is no longer drawn
in Article 30 TFEU. Article 30 TFEU applies to imports and exports. It was the
original version of this Article, Article 12 EEC which the Court considered to be
directly effective in Van Gend en Loos v. Nederlandse Administratie der
Belastingen [1963] ECR I-1 (Case 26/62).
14 Article 12 EEC.

3.2 Treaty Provisions on Discriminatory Taxes
Part Three Title VII TFEU is entitled Common rules on competition, taxation and
approximation of laws. Chapter 2 relates to tax provisions and comprises Articles
110- 113 TFEU15.
Article 110 TFEU16 is of note. It provides:
No Member State shall impose, directly or indirectly, on the products of

other Member States any internal taxation of any kind in excess of that
imposed directly or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other

Member States any internal taxation of such a nature as to afford indirect
protection to other products.
3.3 Distinction between Article 30 TFEU and Article 110 TFEU
Cahill et al17 note (at 59), “it is evident that while the Treaty appears to prohibit
customs duties and charges having equivalent effect absolutely (Article 30
[TFEU]), measures imposed by way of a State’s internal taxation regime may be
tolerated, provided certain parameters are respected (Article 110 [TFEU]).”
4. The Customs Union

Craig and de Búrca18 emphasise (at 638), “[t]he abolition of customs duties and
charges having equivalent effect is central to the idea of a customs union and a
single market.” Wyatt and Dashwood19 explain (at 536), “whereas a free trade area
comprises a group of customs territories in which duties are eliminated on trade in
goods originating in such territories, a customs union represents a further step in
economic integration, since a common tariff is adopted in trade relations with the
outside world.” Thus, the CoJ has interpreted 28- 30 TFEU strictly.20
5. Prohibition of Customs Duties and CEES

Customs duties on imports and exports are prohibited by Article 30 TFEU. In
Commission v. Italy [1968] ECR 423 (Case 7/68), (the Italian Art case), the CoJ
emphasised that it was the effect of the duty or charge and not its purpose which
was relevant. Italy imposed a tax on the export of goods of artistic and historic
value. The Commission prosecuted Italy for breach of the prohibition on duties
and charges on exports. In its defence Italy submitted that the purpose of the
charge was not to raise revenue but to protect Italy’s artistic, historical and

16 Ex Article 90 EC. Originally Article 95 EEC.
17 European Law (5th ed., OUP/Law Society of Ireland, 2011).
18 6th ed.
19 5th ed.
20 See Craig and de Búrca (6 th ed.), at 638, and Wyatt and Dashwood (5th ed.), at 537.

archaeological heritage, to protect its national treasures. The CoJ reasoned (at
428-429):
Under [Article 28 TFEU21] of the Treaty the community is based on a

customs union “which shall cover all trade in goods”. By goods, within the
meaning of that provision, there must be understood products which can
be valued in money and which are capable, as such, of forming the subject
of commercial transactions...
[Article 30 TFEU] prohibits the collection in dealings between member

states of any customs duty on exports and of any charge having an
equivalent effect, that is to say, any charge which, by altering the price of
an article exported, has the same restrictive effect on the free circulation of
that article as a customs duty. This provision makes no distinction based
on the purpose of the duties and charges the abolition of which it requires.
It is not necessary to analyse the concept of the nature of fiscal systems

on which the defendant bases its argument upon this point, for the
provisions of the section of the treaty concerning the elimination of customs
duties between the member states exclude the retention of customs duties
and charges having equivalent effect without distinguishing in that respect
between those which are and those which are not of a fiscal nature.
The disputed tax falls within [Article 30 TFEU] by reason of the fact that
export trade in the goods in question is hindered by the pecuniary burden
which it imposes on the price of the exported articles. [Emphasis added.]
The CoJ’s strict interpretation of Article 30 TFEU is apparent from this decision.
The CoJ rejected the argument put forward by Italy that the tax was capable of
being justified by reference to one of the defences in Article 36 TFEU, emphasising
that Article 36 TFEU is in the Treaty Chapter relating to the elimination of
quantitative restrictions.
[Those] provisions . . . introduced the fundamental principle of the

elimination of all obstacles to the free movements of goods between
Member States by the abolition of, on the one hand, customs duties and
charges having equivalent effect and, on the other hand, quantitative
restrictions and measures having equivalent effect. Exceptions to this
fundamental rule must be strictly construed.
Article 36 TFEU cannot be used as a defence to validate fiscal measures.
Sociaal Fonds voor de Diamantarbeiders v. S.A. Ch. Brachfeld & Sons [1969] ECR
211 (Joined Cases 2 and 3/69) concerned a preliminary reference concerning a
Belgian law imposing a levy on imported diamonds. Belgium submitted that the
purpose of the measure was not protectionist. Belgium did not produce diamonds
and the purpose of the levy was to provide social security for diamond industry
workers. The CoJ confirmed that it was the effect of the measure rather than its

purpose which was relevant. Further the Treaty requires more than the elimination
of protective measures. The CoJ stated:
. . . customs duties are prohibited independently of any consideration of the

purpose for which they were introduced and the destination of the revenue
obtained therefrom. The justification for this prohibition is based on the fact
that any pecuniary charge - however small - imposed on goods by reason
of the fact that they cross a frontier constitutes an obstacle to the movement
of such goods. [Emphasis added.]
Charges of equivalent effect to customs duties (CEEs) are also prohibited by

Article 30 TFEU.
In Commission v. Italy [1969] ECR 193 (Case 24/68) (statistical-data case), Italy
imposed a levy on goods exported to other Member States for the purpose of
collecting statistics. This charge was held to breach EU law. The CoJ confirmed
that customs duties are prohibited irrespective of their purpose. The CoJ stated
that a charge of equivalent effect is
...any pecuniary charge, however small and whatever its designation and
mode of application, which is imposed unilaterally on domestic or foreign
goods by reason of the fact that they cross a frontier, and which is not a
customs duty in the strict sense constitutes a charge having equivalent
effect within the meaning of [Articles 28 and 30 TFEU22] even if it is not
imposed for the benefit of the State, is not discriminatory or protective in
effect and if the product on which the charge is imposed is not in
competition with any domestic product.
It follows ...that the prohibition of new customs duties or charges having

equivalent effect, linked to the principle of free movement of goods,
constitutes a fundamental rule which, without prejudice to the other
provisions of the Treaty does not permit of any exceptions.
The CoJ considered that the charge breached the Treaty.
Foster23 observes “[t]he total prohibition of customs duties per se means that cases
of such an obvious breach rarely arise, hence the concentration on charges having
equivalent effect.”
Cahill et al24 point out (at 58), “notwithstanding the strictness of this
pronouncement, the [CoJ] did create judicial exceptions to this prohibition.”
In Sociaal Fonds voor de Diamantarbeiders v. S.A. Ch. Brachfeld & Sons [1969]
ECR 211 (Joined Cases 2 and 3/69), the CoJ confirmed the broad definition of a
charge having equivalent effect (a CEE). The CoJ stated:
22 Articles originally numbered Articles 9, 12, 13, and 16 EEC, later Articles 23 and 25 EC.
23 4th ed.
24 European Law (4th ed., OUP/Law Society of Ireland, 2008).

The extension of the prohibition of customs duties to charges having
equivalent effect is intended to supplement the prohibition against
obstacles to trade created by such duties by increasing its efficiency. The
use of these two complementary concepts thus tends, in trade between
Member States, to avoid the imposition of any pecuniary charge on goods
circulating within the Community by virtue of the fact that they cross a
national frontier. Thus, in order to ascribe to a charge an effect equivalent
to a customs duty, it is important to consider this effect in the light of the
objectives of the treaty, in the parts, titles and chapters in which [Articles
28 and 30 TFEU25] are to be found, particularly in relation to the free
movement of goods. Consequently, any pecuniary charge, however small
and whatever its designation and mode of application, which is imposed
unilaterally on domestic or foreign goods by reason of the fact that they
cross a frontier, and which is not a customs duty in the strict sense,
constitutes a charge having equivalent effect within the meaning of [Articles
28 and 30 TFEU], even if it is not imposed for the benefit of the state, is not
discriminatory or protective in effect or if the product on which the charge
is imposed is not in competition with any domestic product. [Emphasis
added.]
The prohibitions in Articles 28 and 30 TFEU apply whether the measure is

discriminatory or not.
In Carbonati Apuani Srl v. Commune di Carrara [2004] ECR I 8027 (Case C-72/03)
the CoJ held that a charged imposed on marble leaving Carrara, where it was
excavated was a CEE (a charge having equivalent effect to a customs duty) even
though it applied equally to marble leaving for other parts of Italy.
6. Exceptions to the Article 30 TFEU Prohibition

As mentioned above, notwithstanding the language employed by the CoJ it has
over time accepted that exceptions to the Article 30 TFEU prohibition exist.
Exceptions are interpreted narrowly by the CoJ. Wyatt and Dashwood26 state (at
394):
A charge falling within the scope of [Article 30 TFEU] can never be justified;
however in some cases (narrowly interpreted) a charge might fall altogether
outside the scope of [Article 30 TFEU]. This is the case in relation to
charges imposed on traders to cover costs of services actually rendered to
the importer/exporter and in relation to charges imposed to discharge an
obligation imposed by Community law. [Footnotes omitted. Emphasis
added.]
25 Articles originally numbered Articles 9 and 12 EEC, later Articles 23 and 25 EC.
26 6th ed.

6.1 Fees charged for a service (exchange)
As Craig and de Búrca27 point out (at 642), a common defence that is raised by
Member States to attempt to justify a charge is that the charge imposed on
imported goods is merely payment for a service which the State has rendered to
the importer, and that therefore it should not be regarded as a charge having
equivalent effect to a customs duty. In principle, the CoJ has accepted this
argument but it scrutinises such claims.28 In practice, it is difficult to demonstrate
that a specific benefit to the importer (or exporter) exists. Also it is necessary to
show that the fee charged is no more than the actual cost of the service provided.
In Commission v. Italy [1969] ECR 193 (Case 24/68) (statistics case) the CoJ did
not accept that the levy could be regarded as consideration for a specific benefit
actually incurred. Italy claimed that the compilation of statistics was of benefit to all
importers. The CoJ held that a specific benefit to the importer/exporter would have
to be demonstrated. The benefit deriving from the collection of statistics was too
general to determine whether it benefitted individual importers or exporters. The
levy fell within Article 30 TFEU and was prohibited.
In FENS spol. s r.o.v. Slovak Republic Case C-305/17; ECLI:EU:C:2018:986

concerned a reference as to whether a specific pecuniary charge for the export of
electricity from Slovak territory contravened Articles 28 and/or 30 TFEU. The
Slovak Government had argued that an identical charge was levied on electricity
consumed in Slovakia, regardless of the origin of the electricity. However the Court
held:
44 … the Slovak Government, while stating in its written observations
that that pecuniary charge had been levied for a network service which
was actually provided to exporters, has failed to substantiate this part of
its case by additional elements capable of establishing that the charge at
issue represented such a specific benefit.
45 It is also not clear from the other material in the file whether a
pecuniary charge imposed in order to maintain balance between the
available generation capacity and electricity demand is capable of
constituting consideration for a service conferring a specific benefit.
46 In those circumstances, a pecuniary charge such as that in issue in

the main proceedings, levied on electricity exported both to another
Member State other than the Slovak Republic and to third countries,
constitutes a charge having equivalent effect within the meaning of
Article 28 TFEU.
As regards a potential justification, the Court reiterated:
53 In this regard, it is settled case-law that the prohibition in Article 28

TFEU is of a general and absolute nature (see, to that effect, judgment of
21 September 2000, Michaïlidis, C-441/98 and C-442/98, EU:C:2000:479,
paragraph 14 and the case-law cited). The FEU Treaty does not provide
27 6th ed.
28 See Craig and de Búrca (6th ed), at 642 et seq.

for any derogations and the Court has held that it follows from the clarity,
imperative nature and unrestricted scope of the provisions of relevant
primary law that the prohibition of customs duties constitutes an essential
rule and that any exception must therefore be clearly provided for. The
Court has also stated that the concept of a ‘charge having equivalent effect
to a customs duty’ is the necessary complement to the prohibition of
customs duties (see, to that effect, judgment of 14 December
1962, Commission v Luxembourg and Belgium, 2/62 and 3/62,
EU:C:1962:45, at page 432).
54 The Court has also taken the view that the derogations from
Articles 34 and 35 TFEU provided for in Article 36 TFEU cannot be applied
by analogy in the context of customs duties and charges having equivalent
effect (see, to that effect, judgment of 10 December
1968, Commission v Italy, 7/68, EU:C:1968:51, at page 430).
55 Those considerations hold good both for the prohibition of charges

having equivalent effect to a customs duty on exports to other Member
States and for the prohibition of such charges on exports to third counties.
56 It follows that, as the pecuniary charge in question must be regarded
as being a charge having equivalent effect to customs duties, it cannot
have any justification.
6.2 Inspections?
In Bresciani v. Amminstrazione Italiana delle Finanze [1956] ECR 129 (Case

87/75), the CoJ considered whether a charge imposed by the Italian authorities for
compulsory veterinary and public health inspections on raw cow hides was a CEE
(a charge having equivalent effect to a customs duty).
The CoJ rejected the Italian argument that the charge was proportionate to the
quantity of imported goods as Article 30 TFEU prohibits any charge imposed by
reason of a good crossing a frontier. The CoJ rejected Italy’s argument that where
a good requires health inspection it is the trader who should pay for the inspection
reasoning that the public should pay for inspections to maintain public health. Italy
also submitted that domestic production was subject to similar charges.
The CoJ required that the charges would be “applied according to the same criteria
and at the same stage of production, thus making it possible for them to be
regarded as falling within the general system of internal taxation applying
systematically and in the same way to domestic and imported products” before
they would fall outside of Article 30 TFEU.
In Commission v. Germany [1988] ECR 5427 (Case 18/87) the CoJ recognised a
type of pecuniary charge which would fall outside of Article 30 TFEU. German
charged fees on live animal imports. The fee was charged pursuant to an EU legal
act (Directive 81/389/EEC on the protection of live animals during international
transport). The CoJ accepted that a charge imposed by a State levied to cover the
cost of a mandatory inspection required by EU law fall outside Article 30 TFEU and
are not prohibited. Where an inspection is permitted by EC law (as opposed to

mandatory) charges imposed to recover the costs of the inspection are prohibited:
Commission v. Belgium [1984] ECR 1543 (Case 314/82).
7. Discriminatory Tax Provisions

Articles 110-113 TFEU29 concern the prevention of national taxation from
discriminating against imports.
Bergandi v. Directeur général des impôts [1988] ECR 1343 (Case 252/86)
concerned a challenge to a French tax on gaming machines. The CoJ explained
the purpose of Article 110 TFEU:
24. ... Within the EEC Treaty, Article 110 TFEU] supplements the
provisions on the abolition of customs duties and charges having
equivalent effect. Its aim is to ensure free movement of goods between the
Member States in normal conditions of competition by the elimination of all
forms of protection which may result from the application of internal taxation
that discriminates against products from other member states. Thus [Article
110 TFEU] must guarantee the complete neutrality of internal taxation
as regards competition between domestic products and imported products.
Craig and de Búrca30 explain (at 648):
The aim of Article 110 TFEU can be stated quite simply: it is to prevent the
objectives of Articles 28-30 TFEU from being undermined by discriminatory
internal taxation… Articles 28 -30 TFEU… would be undermined if a state
could prejudice foreign products when they were inside its territory by
levying discriminatory taxes, thereby disadvantaging those imported
products in competition with domestic goods. Article 110 TFEU is designed
to prevent this happening, and this has been recognised by the [CoJ] which
demands complete neutrality of internal taxation as regards domestic and
imported products. [Footnote omitted.]
7.1 Prohibition of Direct Discrimination
Article 110(1) TFEU31 prohibits direct discrimination. In Commission v. Italy [1980]

ECR (Case 21/79), Italy charged lower taxes on regenerated oil, for ecological
reasons. Only Italian oil benefited from this measure. Italy argued that it would be
impossible to know whether imported oil was in fact regenerated but the CoJ
rejected this argument on the basis that it was for the producer of the imported oil
to show it came within the category. The CoJ suggested that Italy could have
requested a certificate to verify the oil was regenerated.
The CoJ reached a similar conclusion in H Hansen v. Hauptzollamt Flensburg

[1978] ECR 1787 (Case 148/77). Germany afforded tax relief to spirits made from
fruit from small (German) businesses and the CoJ held the tax relief should be
29 Ex Articles 90-93 EC. Originally Articles 95-99 EEC.

30 6th ed.

available to similar firms in other Member States. In Commission v. Ireland [1980]
ECR 481 (Case 55/79), while tax was applied to all goods irrespective of origin
equally. Domestic traders were afforded more favourable payment terms. The CoJ
found this to be in breach of Article 110 TFEU.
7.2 Prohibition of Indirect Discrimination
Indirect discrimination is also prohibited by Article 110(1) TFEU. Humblot v.

Directeur Des Services Fiscaux [1985] ECR 1367 (Case 112/84) involved a French
tax on cars based on engine capacity. Once a car’s engine capacity went above
1600cc a higher rate of tax was payable. No French car had an engine capacity
of greater than 1600 cc with the result that only importers of foreign cars had to
pay the higher rate. The CoJ held that although the taxation system was not overtly
based on the origin of the goods it was nevertheless discriminatory. Subsequently
a new tax system for cars was introduced in France but this was also found to be
discriminatory in Feldain v. Directeur Des Services Fiscaux [1987] ECR 3536
(Case 433/855).
Direct discrimination on the grounds of nationality cannot be justified but

sometimes tax rules which indirectly prefer a Member State’s traders are capable
of objective justification. In Commission v. Greece [1990] ECR I 1567 (Case
132/88) the CoJ considered a system of differentiated taxation in Greece which
favoured cars with smaller engines because they caused less pollution. The Greek
system was objectively justified. The fact that all cars in the highest tax bracket
were imported was not sufficient to establish a violation of Article 110 TFEU. EU
law did not prevent the use of tax policy for social objectives, provided the tax was
based on an objective criterion, was not discriminatory and did not have a
protective effect.
In Outokumpu Oy [1998] ECR I 1777 (Case C-213/96) the CoJ considered Finnish
tax on electricity. Domestic producers were subject to a varying rate dependent
on methods of production and types of energy sources used. A flat rate was
imposed on imported electricity which was sometimes higher than domestic tax.
The importer was not afforded an opportunity to demonstrate electricity imported
by him qualified. The CoJ held this was contrary to Article 110 TFEU.
In Chemial Farmaceuti v. DAF SpA [1981] ECR 1 (Case 140/79) Italy taxed ethyl
alcohol obtained from agricultural products at a lower rate than ethyl derived from
a petroleum derivative to protect the raw materials for more important uses. Italy
was not a major producer of the latter product. The CoJ considered that the
implementation of this policy did not lead to any discrimination as while it
discouraged imports of synthetic ethyl it also hampered Italian production of the
good. The CoJ stated that EU law did not restrict the freedom of Member States
to lay down tax arrangements which differentiate between certain products on the
basis of objective criteria, such as the nature of the raw materials used or the
production process employed.

7.3 Interaction between Article 110(1) TFEU and 110(2) TFEU
Article 110 (1) TFEU32 is concerned with “similar products”. Article 110(2) TFEU33
aims to prevent unequal tax treatment in respect of goods which are in competition
with each other. If a measure breaches Article 110(1) TFEU the offending Member
State will be required to equalise the taxes on domestic and imported products. If
a measure breaches Article 110(2) TFEU the offending Member State will be
required to remove the protective effect.
In Commission v. Italy [1987] ECR 2013 (Case 184/85) the CoJ determined that
bananas were not similar to other fruit. For example, bananas contain minerals.
Thus, the measure fell to be considered under Article 110(2) TFEU. The CoJ
considered a consumption tax of 50% of the purchase price of bananas to be
protective where no such tax applied to domestically produced fruit. In John
Walker v. Ministteriet for Skatter [1986] ECR 875 (Case 243/84) the CoJ held that
whisky and fruit liqueur wines were not similar, they were produced differently, had
different alcoholic strengths and consumers did not view them as similar. The tax
at issue fell to be considered under Article 110(2) TFEU.
In Commission v. United Kingdom [1983] ECR 2265 (Case 170/78), the

Commission prosecuted the UK for taxing wine in a manner which was
discriminatory to beer. The CoJ considered that wine and beer were not similar but
did consider that cheaper light alcohol wines were competing with beer. The CoJ
considered the UK’s high tax on wines and stated that consumers did not view
them as competing because of the much higher price of wine resulting from the
tax system. The CoJ considered this a protective measure, where beer was a
domestic product and wines were imported. The CoJ considered the issue of
whether the goods were in competition and stated (at [8]-[12]):
8 As regards the question of competition between wine and beer…to a

certain extent at least, the two beverages in question were capable of
meeting identical needs, so that it had to be acknowledged that there was
a degree of substitution for one another. It pointed out that, for the purpose
of measuring the possible degree of substitution, attention should not be
confined to consumer habits in a Member State or in a given region. Those
habits, which were essentially variable in time and space, could not be
considered to be immutable; the tax policy of a Member State must not
therefore crystallize given consumer habits so as to consolidate an
advantage acquired by national industries concerned to respond to them.
9 The Court nonetheless recognized that, in view of the substantial

differences between wine and beer, it was difficult to compare the
manufacturing processes and the natural properties of those beverages,
as the Government of the United Kingdom had rightly observed. For that
reason, the court requested the parties to provide additional information
with a view to dispelling the doubts which existed concerning the nature of
the competitive relationship between the two products.


10 … The Commission expressed the view that the difference in the
conditions of production, to which the court had attached some importance,
was not significant from the point of view of the price structures of the two
products, particularly in relation to the competitive relationship between
beer and wines of popular quality ...
12 … In view of the substantial differences in the quality and, therefore, in

the price of wines, the decisive competitive relationship between beer, a
popular and widely consumed beverage, and wine must be established by
reference to those wines which are the most accessible to the public at
large, that is to say, generally speaking, the lightest and cheapest varieties.
Accordingly, that is the appropriate basis for making fiscal comparisons by
reference to the alcoholic strength or to the price of the two beverages in
question.
Later the CoJ held that by levying excise duty on still light wines made from fresh
grapes at a higher rate, in relative terms, than on beer, the United Kingdom failed
to fulfil its obligations under Article 110(2) TFEU, reasoning as follows:
26 After considering the information provided by the parties, the Court has
come to the conclusion that, if a comparison is made on the basis of those
wines which are cheaper than the types of wine selected by the United
Kingdom and of which several varieties are sold in significant quantities on
the United Kingdom market , it becomes apparent that precisely those
wines which , in view of their price , are most directly in competition with
domestic beer production are subject to a considerably higher tax burden.
27 It is clear, therefore, following the detailed inquiry conducted by the

Court - whatever criterion for comparison is used, there being no need to
express a preference for one or the other - that the United Kingdom’s tax
system has the effect of subjecting wine imported from other Member
States to an additional tax burden so as to afford protection to domestic
beer production, inasmuch as beer production constitutes the most relevant
reference criterion from the point of view of competition. Since such
protection is most marked in the case of the most popular wines, the effect
of the United Kingdom tax system is to stamp wine with the hallmarks of a
luxury product which, in view of the tax burden which it bears, can scarcely
constitute in the eyes of the consumer a genuine alternative to the typical
domestically produced beverage.
8. The Boundary between Articles 28-30 TFEU and Articles 110-113

TFEU
Craig and de Búrca34 state (at 659) that the two sets of articles are “mutually
exclusive”. They continue:
34 6th ed.

They both concern the imposition of fiscal charges by the state. Articles 28-
30 TFEU bite on those duties or charges levied as a result of goods
crossing a border. The duty or charge is exacted at the time of, or on
account of, the importation, and is borne specifically by the imported
product to the exclusion of similar domestic products. Articles 110-113
TFEU, by way of contrast, are designed to catch fiscal policy which is
internal to the state. They prevent discrimination against goods once they
have entered a particular Member State. The Court has construed both
sets of provisions so that there is no gap between them. [Footnotes
omitted.]
This was confirmed by the CoJ in Cucchi v. Avez SpA [1977] ECR 987 (Case
77/76). If both sets of provisions are invoked before the CoJ, the CoJ will
determine which set applies.
Foster35 notes (at 249-250):
If a charge is imposed by a member state as a measure of internal taxation

that is non-discriminatory, then it cannot be a [Charge having equivalent
effect to a customs duty] and it cannot be caught by Articles 30-2 TFEU ....
It is governed by Article 110 TFEU instead of the rules on free movement
and member states have not been slow to realise the potential of Article
110 TFEU as a way of justifying a financial charge on imported goods.
Whilst the customs duties and [Charges having equivalent effect to
customs duties] mentioned in Articles 30-2 TFEU must be abolished, tax
measures are allowed because, as a general principle, Article 110 TFEU
allows each member state to establish the system of taxation that it
considers most suitable. However, Article 110 TFEU prohibits tax from
discriminating against imports in the organisation or application of an
internal system of taxation, and was regarded as crucial to complement the
free movement provisions where taxation policy was being employed by a
state to circumvent the customs rules by the imposition of discriminatory
internal taxes.
Denkavit Loire Sarl v. France [1979] ECR 1923 (Case 132/78) provides guidance
for determining whether Article 30 TFEU or Article 110 TFEU applies. The CoJ
considered whether a charge imposed by France on animal lard was a customs
duty or a measure of internal taxation. France imposed a charge on the slaughter
of animals in an abattoir. France also imposed a charge on imported products to
ensure a similar taxation system. The CoJ considered the measure a charge
having equivalent effect to a customs duty and not a measure of internal taxation.
The CoJ stated:
7. … a charge…escapes that classification if it relates to a general system

of internal dues supplied systematically and in accordance with the same
criteria to domestic products and imported products alike, in which case it
does not come within the scope of [Articles 28-30 TFEU] but within that of
[Article 110 TFEU36].
35 4th ed.
36 Article originally numbered 95 EEC, later Article 90 EC.

8. It is however appropriate to emphasize that in order to relate to a general
system of internal dues, the charge to which an imported product is subject
must impose the same duty on national products and identical imported
products at the same marketing stage and that the chargeable event giving
rise to the duty must also be identical in the case of both products. It is
therefore not sufficient that the objective of the charge imposed on imported
products is to compensate for a charge imposed on similar domestic
products - or which has been imposed on those products or a product from
which they are derived - at a production or marketing stage prior to that at
which the imported products are taxed. To exempt a charge levied at the
frontier from the classification of a charge having equivalent effect when it
is not imposed on similar national products or is imposed on them at
different marketing stages or, again, on the basis of a different chargeable
event giving rise to duty, because that charge aims to compensate for a
domestic fiscal charge applying to the same products - apart from the fact
that this would not take into account fiscal charges which had been
imposed on imported products in the originating member state - would
make the prohibition on charges having an effect equivalent to customs
duties empty and meaningless. [Emphasis added.]
This was reiterated by the Court in Dansk Denkavit ApS v. Danish Ministry of
Agriculture [1988] ECR 2965 (Case 29/87).
The CoJ considered (at [36]) that an annual levy charged in like manner on
importers and national producers of feeding stuffs containing additives and
intended to cover the costs incurred by the State in checking samples taken
pursuant to Directive 70/524 is compatible with Articles 28 -30 and 110 TFEU and
the provisions of that directive.
In Outokumpu Oy [1998] ECR I 1777 (Case C-213/96), a Swedish exporter of

electricity to Finland had argued that the charge on electricity was a charge having
an equivalent effect to a customs duty (a CEE):
21 The first point to note is that a duty of the kind at issue in the main
proceedings forms part of a general system of taxation which is levied not
only on electrical energy as such but also on several primary energy
sources such as coal products, peat, natural gas and pine oil.
22 Second, both imported electricity and electricity of domestic origin form

part of the same tax system and the duty is levied by the same authorities,
whatever the origin of the electricity, under procedures governed by the
general legislation on excise duties.
23 Third, with the exception of electricity of domestic origin produced in

generators with an output below two megavolt-amperes and of that
produced in small quantities from peat, the duty is levied on electricity,
whatever its origin, whether domestic or imported. In those circumstances,
the fact that in the case of imported electricity the duty is payable by the
importer on importation does not provide a sufficient basis for the
conclusion that it is imposed on the goods concerned by reason of the fact
that they cross the frontier…

27 The Court has already held that a charge in the form of an internal tax
may not be regarded as a charge having equivalent effect to a customs
duty unless the detailed rules governing the levying of the charge are such
that it is imposed solely on imported products to the exclusion of domestic
products (Case 32/80 Officier van Justitie v Kortmann [1981] ECR 251,
paragraph 18). As may be seen from paragraph 23 above, that is not the
case of the duty at issue in the main proceedings.
28 The Court has also held that the fact that the origin of the goods
determines the amount of the duty to be levied cannot remove it from the
scope of Article [110 TFEU] of the Treaty (Haahr Petroleum, paragraph 25).
29 Consequently, an excise duty of the kind at issue in the main

proceedings constitutes internal taxation within the meaning of Article [110
TFEU], not a charge having equivalent effect to a customs duty within the
meaning of [Articles 28 and 30 TFEU]. [Emphasis added.]
The significance of determining which set of provisions apply is that fiscal

measures caught by Article 30 TFEU are unlawful. If a fiscal measure falls under
Article 110 TFEU, there will be an inquiry as to whether the tax is discriminatory
under Article 110(1) TFEU or has a protective effect under Article 110(2) TFEU.
In many cases it is clear under which set of provisions a measure falls to be
considered.
Craig and de Búrca37 highlight (at 659 et seq.) three problematic cases where it is
difficult to draw a boundary: first, where a Member State imposes a levy on an
importer; secondly, where the importing Member State does not make the product
but nevertheless imposes a tax; thirdly, where a State chooses to make a selective
refund of tax or if it uses the money to benefit a particular group.
An illustration of the distinction between customs and internal taxation measures

is found in the Greek preliminary reference of Viamar v. Elliniko Dimosio
(ECLI:EU:C:2015:830) (Case C-402/14) of 17th December 2015 regarding the
levying of a tax on motor vehicles at the time of their import into the territory of a
Member State linked to registration and potential putting into circulation of the
vehicle. This matter focussed on the refusal to refund the tax where a vehicle was
not registered and the CoJ clearly distinguishes between Articles 30 and 110 TFEU
as follows:
33. … according to the Court’s settled case-law, a tax levied by a Member

State on the registration of motor vehicles for the purpose of being put into
circulation in its territory is neither a customs duty nor a charge having
equivalent effect to a customs duty within the meaning of Articles 28 TFEU
and 30 TFEU. Such a tax is an internal tax and must therefore be examined
in the light of Article 110 TFEU (judgment in Tatu, C‑402/09,
34. In the present case, the referring court states that the registration tax
at issue in the main proceedings, provided for by Articles 121(1) and 128
37 6th ed.

of the National Customs Code, is levied on account of the first registration
of motor vehicles in Greece for the purpose of being put into circulation in
Greek territory, not on account of crossing the border into Greece.
35. In those circumstances, as rightly observed by the referring court,

taxation such as the registration tax at issue in the main proceedings must
be regarded as being internal taxation within the meaning of Article 110
TFEU and does not per se constitute a charge having equivalent effect to
a customs duty within the meaning of Article 30 TFEU. The mere fact that
such a tax must be paid before the vehicle can be registered in the Member
State concerned is of no import in that regard (see, by analogy, judgment
in Brzeziński, C‑313/05, EU:C:2007:33, paragraphs 23 and 24).
The CoJ considered the recouping registration tax levied on vehicles imported to
Greece at time of importation to fall within Article 110 TFEU:
37. In the present case, the referring court indicates that there is no
domestic production of motor vehicles in Greece and that the provisions of
the National Customs Code on registration tax do not distinguish between
motor vehicles according to their origin or the nationality of their owners.
Nor is there anything in the case file submitted to the Court indicating that
the amount of the registration tax at issue in the main proceedings is such
as to reduce the number of new motor vehicles imported and registered in
Greece, thereby affecting the free movement of goods between Greece
and other Member States through its protective effect.
38. Consequently, inasmuch as a tax such as the registration tax at issue

in the main proceedings is charged by reason of the first registration of
motor vehicles in Greece for the purpose of being put into circulation in
Greek territory, Article 110 TFEU must be interpreted as not precluding
such a tax.
45. Although a registration tax such as that provided for under the national
rules at issue in the main proceedings has, in principle, as its chargeable
event the registration of motor vehicles in a Member State and is,
accordingly, internal taxation within the meaning of Article 110 TFEU, that
ceases to be the case if it is collected and not refunded when vehicles
imported from other Member States have never been registered in that
Member State. In such a scenario, it is in reality collected solely by virtue
of the crossing of a frontier of a Member State, thereby causing it to
constitute a charge having equivalent effect to a customs duty, which is
prohibited by Article 30 TFEU.
Ireland, 2011), chapter 2, pp. 58-68

Maxwell, 2011), chapter 15
o Foster, Foster on EU Law (7th ed., Oxford University Press, 2019), chapter
8
o Chalmers et al, European Union Law, Text and Materials (Cambridge
o Weatherill and Beaumont, EU Law (3rd ed., Penguin, 1999), chapters 13
and 14

Chapter 12
Free Movement of Goods: Quantitative Restrictions
and Measures Equivalent to Quantitative Restrictions
1. Required Reading
Cambridge University Press, 2019), chapters 17 and 20
o Barnard, The Substantive Law of the EU: The Four Freedoms (6th ed.,
Oxford University Press, 2019); chapters 4-6.
2. Introduction
This chapter seeks to examine the prohibition on quantitative restrictions and
measures equivalent to quantitative restrictions. In essence, this chapter is
concerned with non-financial barriers to free movement of goods.
3. Quantitative Restrictions
The key provision, Article 34 TFEU1, provides:
Quantitative restrictions on imports and all measures having equivalent

effect shall be prohibited between Member States.
Cahill et al2 explain (at 46) this provision as follows:
… a State (such as Ireland) may not impose any restriction on the

quantity of goods being imported from other Member States and may
not seek to circumvent that by putting in place ‘equivalent measures.’”
The aim of Article 34 TFEU is to prohibit quotas.
Foster3 states (at 254), “[q]uantitative restrictions are straightforward: either a

ban or a quota. It is the extent to which member states can insist that imported
products comply with national standards in the face of the attempt to create a
genuinely unified single market that causes real difficulties.”
Article 35 TFEU contains a similar prohibition in respect of exports.
Quantitative restrictions on exports and all measures having equivalent

effect shall be prohibited between Member States.
1 Ex Article 28 EC.
2 European Law (5th ed., Oxford University Press/Law Society of Ireland, 2011).
3 4th ed.
4 Ex Article 29 EC.

In Ianelli and Volpi v. Meroni [1977] ECR 557 (Case 74/76), the CoJ held that
Article 34 TFEU was directly effective, stating:
13 The prohibition of quantitative restrictions and measures having

equivalent effect laid down in [Article 34 TFEU] is mandatory and
explicit and its implementation does not require any subsequent
intervention of the Member States or Community Institutions.
The prohibition therefore has direct effect and creates individual rights
which national courts must protect...
Article 34 TFEU is vertically directly effective but state measures have been
interpreted broadly.
For example, in Commission v. Ireland [1982] ECR 4005 (Case 249/81), the
CoJ considered an Irish campaign to promote the purchase of Irish goods over
imported goods. The activities were carried out by the Irish Goods Council, a
registered private company whose members were appointed by the State and
whose activities were largely funded by the State. The CoJ considered the
advertising campaign and the use of the “Guaranteed Irish” symbol were
Foster5 argues (at 255), “the extension of the scope of Article 34 TFEU is
analogous to Foster v. British Gas plc [1990] ECR I 3313] when considering an
emanation of the state for the purposes of direct effects of directives.”
The prohibition in Article 34 TFEU is not absolute. Article 36 TFEU sets out
a series of exceptions (often called justifications) which allow a Member State
to justify quantitative restrictions on imports or exports on the basis of one of
the justifications set out in Article 36.
The provisions of Articles 34 and 35 shall not preclude prohibitions or

restrictions on imports, exports or goods in transit justified on grounds
of public morality, public policy or public security; the protection of
health and the life of humans, animals and plants; the protection of
national treasures possessing artistic, historic or archaeological value;
or the protection of industrial and commercial property. Such prohibition
or restriction shall not, however, constitute a means of arbitrary
discrimination or disguised restriction on trade between Member
States. [Emphasis added.]
Quantitative restrictions are discussed here in the context of imports.
Cahill et al7 distinguish (at 46) between the prohibition on customs duties and
quantitative restrictions as follows: -
Quantitative restrictions do not include fiscal or pecuniary charges

imposed by Member States unilaterally on goods when they cross a
border. The case law on customs duties defines a customs duty (or a
5 4th ed.
6 Ex Article 30 EC.
7 Op. cit.

charge having equivalent effect as being a fiscal or a pecuniary
charge unilaterally imposed by a Member State on goods by virtue
of the fact that they cross a border (Cases 2-3/69 Sociaal Fonds voor
de Diamantarbeiders v SA Brachfield & Sons [1969] ECR 211). Such
measures must be considered under the regime of Article 30 TFEU
Treaty, rather than under Article 34 [TFEU]. [Emphasis added.]
Articles 28-32 TFEU8 aim to achieve a customs union by providing for the
elimination of customs duties between the Member States and establishing a
Common Customs Tariff. Full free movement could never be achieved through
this mechanism alone as Member States would still be able to place quotas on
imported good or through the use of measures having equivalent effects to
quotas. Articles 34-37 TFEU are designed to complement Articles 28-32
TFEU and to prevent Member States from restricting free movement of
goods through the use of quotas or measures having equivalent effect.
The jurisprudence of the Court of Justice has played a considerable role in the
development of this area. Notably the Court of Justice has broadly interpreted
measures having equivalent effect to quantitative restrictions (MEQRs) and
discrimination.
In the seminal decision of Rewe-Zentrale AG v. Bundesmonopolverwaltung fur

Brantweinn [1979] ECR 648 (Case 120/78), the Court of Justice held that Article
34 TFEU could apply even when there was no discrimination, that Article 34
TFEU could apply to indistinctly applicable measures (sometimes called
“equally applicable measures”).
Foster9 notes (at 263), “Article 34 TFEU ... may also be used to challenge rules
that on their face make no distinction between domestic goods and imported
goods.”
4. Definition of “Goods”
As we saw above, in Commission v. Italy [1968] ECR 423 (Case7/68) the CoJ
described goods as “products which can be valued in money and which are
capable, as such, of forming the subject matter of commercial transactions.”
Chalmers states (at 659) that the CoJ has been relaxed about the need for a
good to be a physical object citing Municipality of Almelo v. Energiebedriff
Ijsselmij [1994] ECR I 5789 (Case C-393/92), where electricity was held to be
a good, and for a good to have a value citing Commission v. Belgium [1992]
ECR I 4431 (Case C-2/90) where waste for disposal was considered a good.
In Sacchi [1974] ECR 409 (Case 155/73), the CoJ held that television signals
fall outside Article 34 TFEU.
5. Measures Caught by Article 34 TFEU

Quantitative restrictions and measures having an equivalent effect to
Quantitative Restrictions (MEQRs) are prohibited by Article 34 TFEU.

9 4th ed.

These terms were not defined in the Treaty.
5.1 Quantitative Restrictions
In Geddo v. Ente Nazionale Risi [1973] ECR 865 (Case 2/73), the CoJ defined
quantitative restrictions as “measures that amount to total or partial restraint of
trade of, according to the circumstance, exports, imports or goods in transit.”
Quantitative restrictions are concerned with limiting quantities of goods, placing
quotas on imports or exports of goods from other Member States and thus, as
noted above, encompass quotas or bans.
In R v. Henn and Darby [1979] ECR 3795 (Case 34/79), UK legislation

prohibiting the importation of pornographic magazines (i.e. a ban) was
considered by the CoJ to be a quantitative restriction. The measure was
therefore contrary to Article 34 TFEU but, as we shall see later, capable of
justification pursuant to Article 36 TFEU.
5.2 Measures having an Equivalent Effect to a Quantitative Restriction

(MEQRS)
The meaning of measures equivalent to quantitative restrictions was less clear.

The CoJ has played a considerable role in defining MEQRs.
Guidance on MEQRs can be found in Directive 50/70/EEC10 which was

applicable during the transitional period.
Wyatt and Dashwood11 state (at 409), “[t]he Directive identifies as measures
having equivalent effect both those that apply only to imported products (Article
2) and those that apply to both domestic and imported products but that are
likely to affect the latter in a specific way.”
Foster12 notes (at 256) that the Directive defines MEQRs:
… as including distinctly applicable measures - that is those that apply

to imports, but not domestically produced goods and which ‘make
imports or the disposal, at any marketing stage, of imported products
subject to a condition - other than a formality - which is required in
respect of imported products only’ (Art 2). That also includes any
measures that subject imported products or their disposal to a condition
that differs from that required for domestic products and which is more
difficult to satisfy.
Distinctly applicable measures are measures which only apply to imports (or
exports).
10 Commission Directive 70/50/EEC of December 22, 1969 based on the provisions of Article
33(7), on the abolition of measures which have an effect equivalent to quantitative restrictions
on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty.
The legal basis - Article 33(7) EEC - was deleted by the Treaty of Amsterdam.
11 6th ed.
12 4th ed.

At Article 2(3), the Directive listed examples of MEQRs as including:
o minimum or maximum prices for imported goods;

o less favourable prices for imported goods;
o less favourable payment conditions for imported goods;
o conditions in respect of packaging, composition, size, weight
which only apply to imported goods or which are different and
more difficult to satisfy than in the case of domestic goods;
o making it mandatory for an importer to have an agent in the
territory of the importing State;
o hindering the purchase by private individuals of imported products
only, or encouraging, requiring or giving preference to the
purchase of domestic products only;
o prescribing that imported products are to conform, totally or
partially, to rules other than those of the importing country;
o prohibiting or limiting publicity in respect of imported products only,
or totally or partially confining publicity to domestic products only;
o subjecting imported products to controls, other than those inherent
in the customs clearance procedure, to which domestic products
are not subject or which are stricter in respect of imported products
than they are in respect of domestic products, without this being
necessary in order to ensure equivalent protection or confine
names which are not indicative of origin or source to domestic
products only.
The removal of discriminatory trade barriers is insufficient to achieve a single

market.
In Article 3 of Directive 70/50 the Commission provided that, in addition to the

discriminatory measures prohibited in Article 2, the Directive also covered
measures governing the marketing of goods which deal with shape, size,
weight, composition, presentation and identification, where the measures
were equally applicable to domestic and imported products, and where the
restrictive effects of such measures on the free movement of goods exceeded
the effects intrinsic to such rules. This is the case in particular where the
restrictive effects on free movement of goods are out of proportion or where the
objective can be achieved by other means which are less restrictive.
Measures which apply to both imports and domestic goods are termed
“indistinctly applicable measures”.
5.3 Significant Cases
Chalmers13 states (at 754) that EU “case-law has divided measures which may
be restrictions into three categories, governed by three important cases;
Dassonville, Cassis de Dijon and Keck.” Each of these cases will be explored.
5.4 CoJ definition of MEQRs in Dassonville
A definition of MEQRs was provided in Procureur du Roi v Dassonville [1974]

ECR 837 (Case 8/74), where the CoJ stated:
13 3rd ed.

5. All trading rules enacted by Member States which are capable of
hindering directly or indirectly, actually or potentially, intra-
Community trade are to be considered as measures of equivalent
effect to quantitative restrictions. [Emphasis added.]
This is an extremely broad definition.
Dassonville imported Scotch whisky into Belgium, having purchased the whisky
from French distributors. A Belgian law required such goods to be accompanied
by a certificate of origin. In practice, it would have been very difficult for
Dassonville to obtain the certificate of origin in respect of goods which were in
free circulation in another Member State, particularly one where there was no
requirement to produce a certificate of origin as was the case in France.
Dassonville was prosecuted in Belgium and in its defence argued that the
Belgian law was a MEQR. The Belgian authorities argued that the purpose of
the measure was not to regulate trade but to protect consumers and, therefore,
that the law was not governed by Article 34 TFEU. In the context of a
preliminary reference from the Belgian national court, the CoJ gave (at [5]) the
broad definition of a MEQR set out above. The CoJ held that the Belgian law
constituted a MEQR and was prohibited by the Treaty.
The [CoJ] takes a broad view of measures that hinder the free flow of
goods, and the definition does not even require that the rules actually
discriminate between domestic and imported goods. Dassonville thus
sowed the seeds which bore fruit in Cassis de Dijon, where the [CoJ]
decided that [Article 34 [TFEU] could apply to rules which were not
discriminatory.
In Dassonville the CoJ took a broad approach to determining whether a

measure was a MEQR. It seemed from the definition provided of MEQRs that
a measure need not be discriminatory to be caught by Article 34 TFEU.
The CoJ stated:
6. In the absence of a Community system guaranteeing for consumers

the authenticity of a product’s designation of origin, if a Member State
takes measures to prevent unfair practices in this connection, it is
however subject to the condition that these measures should be
reasonable and that the means of proof required should not act as a
hindrance to trade between Member States, and should in
consequence be accessible to all Community nationals.
Thus, reasonable restraints may not be caught by Article 34 TFEU). Craig and
de Búrca point out (at 668) that “this is the origin of what became known as the
‘rule of reason’.”15 The “rule of reason” is discussed below.
The CoJ then stated:
9. … the requirement by a Member State of a certificate of authenticity

which is less easily obtainable by importers of an authentic product
which has been put into free circulation in a regular manner in another
14 6th ed.
15 Ibid.

member state than by importers of the same product coming directly
from the country of origin constitutes a measure having an effect
equivalent to a quantitative restriction as prohibited by the Treaty.
An example of a case confirming Dassonville is Fra.bo SpA v Deutsche

Vereinigung des Gas- und Wasserfaches eV (DVGW) - Technisch-
Wissenschaftlicher Verein [2012] ECR I nyr, judgment of 12 July 2012 (Case
C-171/11)ed16.
Chalmers17 identifies (at 760-763) a number of recent cases where it is

suggested that Article 34 TFEU applies to any measure which hinders access
to a market.
One category of such cases involves rules concerning the use of goods. For
example, in Commission v. Portugal [2008] ECR I 2245 (Case C-265/06), a
Portuguese rule prohibiting the sticking of tinted plastic to car windows was in
breach of Article 34 TFEU. The rule had the same impact as a ban on the sale
of the product.
5.5 Approach of Study
We will examine the CoJ’s approach to discriminatory quantitative restrictions

and MEQRs before exploring the issue discussed in Dassonville that Article 34
TFEU also applies to indistinctly applicable measures.
Both distinctly and indistinctly applicable measures are prohibited by Article 34

TFEU but capable of justification.
It will be seen that it is possible to justify discriminatory rules only on the basis
of one of justifications expressly set out in Article 36 TFEU, which is apparently
an exhaustive list. It is possible to justify indistinctly applicable rules either by
virtue of Article 36 TFEU or on the basis of an alternative set of justifications,
set out in the case-law of the CoJ called “mandatory requirements” and which
unlike the Article 36 TFEU list is not an exhaustive list.18
6. Discriminatory Quantitative Restrictions and MEQRs

Article 34 TFEU clearly prohibits discriminatory quantitative restrictions and
MEQRs, i.e., those that favour domestic products over products imported from
other Member States. The CoJ is unforgiving of discriminatory import (or
export) restrictions, i.e., measures which aim to inhibit imports in favour of
domestic products.
6.1 State supported campaigns
In Commission v. Ireland [1982] ECR 4005 (Case 249/81), the CoJ considered
an Irish campaign to promote the purchase of Irish goods over imported goods.
The activities were carried out by the Irish Goods Council, whose members
16 See [22].
17 3rd ed.
18 Barnard notes (at 171-172) that the Court developed an “open-ended list of (confusingly
named) ‘mandatory requirements’ to supplement [Article 36 TFEU] derogations.” See The

Substantive Law of the EU: The Four Freedoms (5th ed., Oxford University Press, 2016)

were appointed by the State and whose activities were largely funded by the
State. The CoJ considered the advertising campaign and the use of the “Buy
Irish” symbol and held:
25. Whilst it may be true that the two elements of the programme which
have continued in effect, namely the advertising campaign and the use
of the “Guaranteed Irish” symbol, have not had any significant success
in winning over the Irish market to domestic products, it is not possible
to overlook the fact that, regardless of their efficacy, those two
activities form part of a government programme which is designed
to achieve the substitution of domestic products for imported
products and is liable to affect the volume of trade between
Member States.
26. The advertising campaign to encourage the sale and purchase of

Irish products cannot be divorced from its origin as part of the
government programme, or from its connection with the
introduction of the “Guaranteed Irish” symbol and with the
organisation of a special system for investigating complaints
about products bearing that symbol. The establishment of the
system for investigating complaints about Irish products provides
adequate confirmation of the degree of organization surrounding the
“Buy Irish” campaign and of the discriminatory nature of the campaign.
27. In the circumstances the two activities in question amount to the
establishment of a national practice, introduced by the Irish
government and prosecuted with its assistance, the potential effect
of which on imports from other Member States is comparable to
that resulting from government measures of a binding nature.
28. Such a practice cannot escape the prohibition laid down by [Article
34 TFEU] of the Treaty solely because it is not based on decisions
which are binding upon undertakings. Even measures adopted by the
Government of a Member State which do not have binding effect may
be capable of influencing the conduct of traders and consumers in that
state and thus of frustrating the aims of the Community .... [Emphasis
added.]
This decision can be distinguished from that in Apple & Pear Development
Council v. KJ Lewis Ltd [1983] ECR 4083 (Case 222/82). The Apple & Pear
Development Council was a body established by the UK Government and
whose members were appointed by the State. It was financed by the fruit
growers. Its activities comprised compiling statistics, promotion and
undertaking of research and giving technical advice. Its campaign promoting
domestic apples and pears was not in breach of Article 34 TFEU where the
campaign did not advise customers to give preference over fruit imports from
other Member States.
6.2 Requirements Imposed on Imported Products which are not

imposed on Domestic products
In Commission v. Italy [1987] ECR 2717 (Case 154/85), the CoJ considered
Italian provisions which subjected imported cars to requirements not imposed
on Italian cars. For example, in the case of new imported cars a technical
certificate was required indicating the vehicle type and chassis number. The

Italian provisions made the registration of imported vehicles more complicated,
longer, and more costly. The CoJ considered that the measures were likely to
influence intra- Community trade in motor vehicles and therefore constituted
MEQRs of the type prohibited by Article 34 TFEU. Italy argued that the
measures were justified on the grounds of public policy as the measures were
designed to avoid the registration of stolen vehicles. The CoJ rejected this
argument inter alia on the basis that less restrictive means of achieving this
objective were possible, such as a check on the chassis number.
6.3 State inaction
In Commission v. France [1997] ECR I 6959 (Case C-265/95), Article 34 TFEU

was invoked against France for its failure to prevent private parties interfering
with the free movement of goods. For a number of seasons, French authorities
had stood by and observed Spanish strawberries being destroyed by French
farmers. Failure to take sufficient action breached Article 34 TFEU.
6.4 Origin marking
In Commission v. United Kingdom [1985] ECR 1201 (Case 207/83), the CoJ
considered a UK law requiring that certain goods to be sold in retail outlets be
marked with their country of origin. The UK argued that the legislation applied
equally to national and imported products. The CoJ held that the legislation
was likely to have the effect of increasing the production costs of imported
products and making it more difficult to sell them on the United Kingdom market
and was in breach of what is now Article 34 TFEU.
In Commission v. Ireland [1981] ECR 1625 (Case 113/80), the CoJ considered
Irish legislation requiring certain imported souvenirs and jewellery to bear an
origin-mark or be marked as “foreign”. In that case the CoJ indicated, relying
on an earlier decision, that origin-marking is ordinarily not permissible unless
such origin implies a certain quality, basic materials or a process of
manufacture or a particular place in the folklore or tradition of the region in
question. In the absence of any such special feature, the CoJ considered that
the Irish rules amounted to a MEQR, were overtly discriminatory and found
Ireland to be in breach of its Treaty obligations.
6.5 Administrative Practices
In Commission v. France [1983] 1013 (Case 42/82), the CoJ held that it was
contrary to Article 34 TFEU for a Member State (France) to detain imports
(Italian wine) for long periods where there were only minor irregularities in the
accompanying paperwork.
6.6 Minimum Pricing Laws
In Openbaar Ministeries v. Van Tiggele [1978] ECR 25 (Case 82/77) the CoJ
considered Dutch legislation, setting out minimum prices for the sale of spirits
and held that the legislation could be in breach of Article 34 TFEU. The CoJ
stated at paragraph 14:
Thus imports may be impeded in particular where a national authority

fixes prices or profit margins at such level that imported products are
placed at a disadvantage in relation to identical domestic products

either because they cannot profitable be marketed in the conditions laid
down or because the competitive advantage conferred by lower cost
prices is cancelled out.
Such legislation would amount to a quantitative restriction if it prevented the

importer from passing on the lower price benefit to the consumer.
In Scotch Whisky Association and Others v Lord Advocate of December 23,

2015 (ECLI:EU:C:2015:845) (Case C-333/14), the CoJ suggested that Scottish
legislation introducing a minimum price for a unit of alcohol may be contrary to
EU law if less restrictive tax measures could be introduced. A tax measure
might be more appropriate, where conferring additional benefits and a broader
response to the objective of combating alcohol misuse.
The Scotch Whisky Association had brought claiming that the Scottish
legislation constituted a quantitative restriction on trade incompatible with EU
law, and that its effect is to distort competition among distributors of alcohol.
Further, they maintained that tax measures could less restrictively achieve the
objectives pursued by the legislation.
The Scottish government maintained that the aid of said legislation was to
protect human life and health and that said objective could not be achieved
with the same degree of success by means of tax measures.
A preliminary reference from the Inner House of the Court of Session sought to
ascertain whether the introduction of a minimum price was compatible with EU
law; whether the effect of the legislation at issue was to restrict the free
movement of goods and, if it did, whether that restriction could be justified on
the ground of the protection of health. The CoJ made the following points:
i. While Article 167(1)(b) of the Single CMO Regulation provides that

Member States may not allow for price fixing for wines, that applies
solely in the context of laying down marketing rules to regulate
supply.
Thus, even though such national legislation is liable to undermine

the Single CMO Regulation in that it is incompatible with the
principle that is the foundation of that regulation, the regulation
does not preclude the imposition of a minimum price per unit
of alcohol for the retail sale of wines if that measure is an
appropriate means of securing the objective of the protection
of human life and health and if, taking into consideration the
objectives of the common agricultural policy and the proper
functioning of the common organisation of the markets, it does not
go beyond what is necessary to attain that objective.
ii. National legislation at issue constitutes a measure having an

effect equivalent to a quantitative restriction within the meaning
of Article 34 TFEU since, in preventing the lower cost price of
imported products being reflected in the selling price to consumers,
it is capable of hindering the access to the national market of the
products concerned.
Although that legislation is capable of reducing the consumption of

alcohol, in general, and hazardous or harmful consumption, in

particular, it cannot benefit from the derogation laid down in
Article 36 TFEU if human life and health can be as effectively
protected by measures that are less restrictive of trade within
the European Union, and in particular by increased taxation on
alcoholic drinks. It is for the national court to determine whether that
is indeed so.
iii. Finally, as regards the principle of proportionality, the Court

observed that, as the national legislation at issue has not entered
into force, the national court must rely on the material of which it
has knowledge at the time when it gives its ruling and examine
whether it may reasonably be concluded from the evidence
submitted that the derogation from the principle of free movement
of goods satisfies the principle of proportionality. That review is not
limited solely to information available to the national legislature
when it adopted the measure.
The CoJ held that it was ultimately for the national court to determine whether
measures other than that provided for by the Scottish legislation, such as
increased taxation on alcoholic drinks, were capable of protecting human life
and health as effectively as the current legislation, while being less restrictive
of trade in those products within the EU. The Court added that the fact that the
tax measures might more broadly secure the objective of health protection
could justify the rejection of such measures. It also suggested, of its own
motion, that VAT increases across the board might provide a more
proportionate means of attaining the objective sought.
7. Justifying Discriminatory Quantitative Restrictions and

MEQRs
Articles 34 and 35 TFEU are not absolute. Some discriminatory quantitative
restrictions and MEQRs are permissible, and the legal basis is provided in
Article 36 TFEU. Article 36 TFEU provides:
The provisions of Articles 34 and 35 shall not preclude prohibitions or

restrictions on imports, exports or goods in transit justified on grounds
of public morality, public policy or public security; the protection of
health and the life of humans, animals and plants; the protection of
national treasures possessing artistic, historic or archaeological value;
or the protection of industrial and commercial property. Such prohibition
or restriction shall not, however constitute a means of arbitrary
discrimination or disguised restriction on trade between Member States.
For a discriminatory quantitative restriction to be justified, it must satisfy several

conditions:
(i) it must fall into one of the six exceptional categories listed in
Article 36 TFEU;
(ii) it must not be arbitrarily discriminatory;
(iii) it must not constitute a disguised restriction on trade between

Member States; and

(iv) it must adhere to the principle of proportionality whereby
measures taken by a Member State should be restricted to what
is necessary to attain the legitimate aim pursued.
In Commission v. Ireland [1981] ECR 1625 (Case 113/80), discussed above in

the context of origin marking requirements, the Irish government sought to
justify the discriminatory measures on the basis of consumer protection and
fairness of commercial transactions. The justifications suggested by the Ireland
were not listed in Article 36 TFEU. The CoJ emphasised that Article 36 TFEU
was a derogation from the free movement of goods and that no new exceptional
categories could be created by the CoJ, stating:
7. ... [Article 36 TFEU] ... constitutes a derogation from the basic rule
that all obstacles to the free movement of goods between Member
States shall be eliminated and must be interpreted strictly, the
exceptions listed therein cannot be extended to cases other than those
specifically laid down.
8. In view of the fact that neither the protection of consumers nor the
fairness of commercial transactions is included amongst the exceptions
set out in Article [36 TFEU], those grounds cannot be relied upon as
such in connexion with that article.
It appears from that decision of the Court of Justice that the list of justifications
set down in Article 36 TFEU is a closed list, at least in respect of discriminatory
quantitative restrictions or MEQRs.
In PreussenElecktra AG v. Schleswag AG [2001] ECR I 2099 (Case C-379/98),

Advocate General Jacobs questioned whether the list was exhaustive. It will
be seen below that there is a non-exhaustive list of justifications in respect
of indistinctly applicable measures and the distinction drawn between
discriminatory and indistinctly applicable measures has been criticised.
Craig and de Búrca19 state (at 703) that the CoJ “has more recently evinced
willingness to allow environmental protection to be pleaded as a defence
without too close an inquiry whether this should be rationalised under Article 36
or as a mandatory requirement for the purposes of the Cassis exceptions”,
citing the decisions in Commission v. Austria [2008] ECR I 187 (Case C-524/07)
and Aklagaren v. Percy Mickelsson and Joakim Roos [2009] ECR I 4273 (Case
C-142/05).
This issue of whether the same justifications should be available in respect of

discriminatory measures as for the Cassis exceptions will be discussed further
below. However, apart from the environment justification, the CoJ’s case-law
is consistent that only the Article 36 TFEU derogations can be invoked to justify
discriminatory rules breaching Article 34 TFEU.
The principle of proportionality underlies last sentence of Article 36 TFEU.

In Commission v. France (Italian Table Wines) [1983] ECR 1013 (Case 42/82),
where Italian wines were subjected to systematic long administrative delays of
weeks and months, this was found to be disproportionate.
19 6th ed.

In Commission v. United Kingdom (UHT milk) [1983] ECR 203 (Case 124/81),
the requirement of an import license although issued automatically was held by
the CoJ to be a disguised restriction.
7.1 The Exceptions in Article 36 TFEU
We will look at examples from the case-law of how the justifications in Article
36 TFEU have been interpreted by the CoJ. We will also look at the final
sentence of Article 36 TFEU.
7.1.1 Public Morality

In R v. Henn and Darby [1979] ECR 3795 (Case 34/79), the CoJ held that a UK
ban on the importation of pornographic magazines could be justified under
Article 36 TFEU, notwithstanding that similar magazines were lawfully available
for sale in the UK. The CoJ determined that each Member State may determine
what is contrary to public morality within its own territory. The CoJ considered
that the prohibition although stricter than that which applied internally was not
designed to discriminate in favour of the domestic product.
In Conegate v. HM Customs and Excise [1986] ECR 1007 (Case 121/85), blow-
up dolls were seized by UK customs. There was no ban on similar products
being manufactured or marketed in the UK. The CoJ repeated that each
Member State may determine what is contrary to public morality in its own
territory. The CoJ held that a Member State may not rely on the grounds of
public morality to prohibit the importation of goods from other Member States
when its legislation contains no prohibition on the manufacture or marketing of
the same goods on its territory. The prohibition was a disguised restriction on
trade and was arbitrarily discriminatory.
7.1.2 Public Policy

In R v. Thompson [1978] ECR 2247 (Case 7/78), a UK export ban on silver
alloy coins minted before 1947, which were no longer legal tender but which it
was not permissible to destroy was considered by the CoJ. The ban was
justified on the grounds of public policy, where it stemmed from the need to
protect the right to mint coinage which is traditionally regarded as involving the
fundamental interests of the State.
In Cullet v. Centre Leclerc [1985] ECR 305 (Case 231/83), the CoJ considered
French legislation which imposed minimum resale prices for fuel, fixed
according to French production costs. The CoJ held that the law was a MEQR
as imports could not benefit from lower costs in the country of origin. France
sough to justify the restriction on the grounds of public policy submitting that
there would be blockades, civil disturbances and violence. The CoJ was not
convinced that France would be unable to meet the consequences having
regard to the resources available to it.
7.1.3 Public Security

In Campus Oil Ltd v. Minister for Industry and Energy [1984] ECR 2727 (Case
72/83), the CoJ considered an Irish statutory instrument requiring importers of
petroleum products to purchase a percentage of their requirements from a
State-owned oil refinery. The statutory instrument was considered a MEQR.
Ireland submitted that it was justified on the grounds of public security (and
public policy) on the basis that it was vital to maintain an independent oil refining
capacity. The CoJ considered that because of their exceptional importance as

an energy source in the modern economy, petroleum products are of
fundamental importance for a country’s existence since not only its economy
but its institutions, its essential public services and even the survival of its
inhabitants depended on it. The CoJ considered that the interruption of supplies
would seriously affect the public security of a State.
An interesting example of this exception can be found in Van Gennip BVBA

Case C-137/17; ECLI:EU:C:2018:771 where the Court was tasked with
assessing, inter alia, whether Belgian legislation laying down restrictions on the
storage and sale of pyrotechnic articles, namely the prohibition of party
fireworks containing more than 1 kg of pyrotechnic composition from being held
or used by, or sold to, consumers.
The Court noted:
57 . . . in accordance with the settled case-law of the Court, reliance on

the exception of public policy and security constitutes a derogation
from the fundamental principle of the free movement of goods,
which must be interpreted strictly and the scope of which cannot be
determined unilaterally by the Member States without any control by
the institutions of the EU (see, by analogy, judgments of 31 January
2006, Commission v Spain, C-503/03, EU:C:2006:74,
paragraph 45; of 19 June 2008, Commission v Luxembourg,
C-319/06, EU:C:2008:350, paragraph 30, and of 13 July 2017, E,
58 The Court’s case-law has accordingly made it clear that the

concept of public policy presupposes, in any event, the existence,
in addition to the perturbation of the social order which any
infringement of the law involves, of a genuine, present and
sufficiently serious threat to one of the fundamental interests of
society (see, by analogy, judgments of 31 January
2006, Commission v Spain, C-503/03, EU:C:2006:74,
paragraph 46; of 19 June 2008, Commission v Luxembourg,
C-319/06, EU:C:2008:350, paragraph 50, and of 17 November
2011, Aladzhov, C-434/10, EU:C:2011:750, paragraph 35).
59 In the present case, it is appropriate to note, as the Advocate

General observed in point 88 of his Opinion, that pyrotechnic
articles are inherently dangerous products since, in particular
articles of which the pyrotechnic composition exceeds 1 kg, they
can prejudice the safety of persons. He also stated, correctly, that
those articles, due to their very nature and depending on the
circumstances in which they are used, can affect public order.
60 Accordingly, the fact of making the sale to individuals of pyrotechnic

articles of which the pyrotechnic composition exceeds 1 kg is
subject to the acquisition of an authorisation by individuals is such
as to prevent threats to the public order and safety since that
national legislation permits the monitoring and, where appropriate,
restrictions on the quantity of pyrotechnic composition is in the
possession of an individual. Consequently, that national legislation
appears appropriate for the protection of public order and safety…

third question is that the principle of free movement of pyrotechnic
articles, as provided for, inter alia, in Article 6(2) of Directive
2007/23, does not preclude national legislation which restricts the
possession or use by consumers and the sale to consumers of
fireworks of which the pyrotechnic composition exceeds 1 kg, to the
extent that such legislation is appropriate to guarantee public order
and security and does not go beyond what is necessary to protect
those fundamental interests, which it is for the referring court to
ascertain.
7.1.4 Protection of health and the life of humans, animals, and plants
In Commission v. United Kingdom [1982] ECR 2793 (Case 40/82), the UK
attempted to justify a ban on turkey imports from other Member States on the
basis that the purpose of the ban was to protect UK turkeys from Newcastle
disease. The CoJ considered whether the measures were necessary for the
protection of animal health or whether as alleged by the Commission, the
measures went further than what was necessary. The Court of Justice
determined that the purpose of the ban was to protect UK producers.
In Officier van Justitie v. Sandoz BV [1983] ECR 2445 (Case 174/82) the CoJ
considered a Dutch rule prohibiting the sale of muesli bars which contained
added vitamins without prior authorisation. The rationale for the rule was that
vitamins were dangerous to public health. There was not scientific consensus
on when excessive vitamin consumption became dangerous. There was some
European Community legislation on food additives. The CoJ stated (at [16]):
...in so far as there are uncertainties at the present state of scientific

research it is for the Member States, in the absence of harmonisation,
to decide what degree of protection of the health and life of humans
they intend to assure, having regard however for the requirements of
the free movement of goods within the Community.
The CoJ accepted that in view of the uncertain scientific assessment the Dutch
rule was justified on the grounds of protection of public health.
17....In view of the uncertainties inherent in the scientific assessment,

national rules prohibiting, without prior authorisation, the marketing of
foodstuffs to which vitamins have been added are justified on principle
within the meaning of Article 36 of the Treaty on the grounds of the
protection of human health.
The CoJ does require Member States to carry out a risk assessment. In
Commission v. Netherlands (Dutch Vitamins) [2004] ECR I 11375 (Case C-
41/02) which concerned Dutch legislation prohibiting the addition of vitamins to
food, the CoJ found the Dutch legislation to be illegal where no sufficient study
of the risk had been undertaken.
Visnapuu v. Kihlakunnansyyttäjä ECLI:EU:C:2015:751 (Case 198/14)

concerned the prosecution of an Estonian company enabling Finnish residents
to purchase various brands of alcoholic beverage through its website for
various breaches of Finnish customs law and where said company did not
possess a wholesale or retail sale licence for the purposes of the Finnish Law
on Alcohol. The Court held (at 108]):

. . . it must be held that legislation of a Member State, such as that at
issue in the main proceedings, under which a seller established in
another Member State must hold a retail sale licence in order to import
alcoholic beverages with a view to their retail sale to consumers residing
in the first Member State, where that seller, or someone acting on his
behalf, transports those beverages, constitutes a measure having
equivalent effect to a quantitative restriction on imports within the
meaning of Article 34 TFEU.
However, the Court accepted the Finnish justification of the measure on health
and public policy grounds, noting (at [124]) that:
… there is nothing before the Court to suggest that the health and public
policy grounds on which the Finnish authorities rely have been diverted
from their purpose and used in such a way as to discriminate against
goods originating in other Member States or indirectly to protect certain
national products (see, to that effect, judgments in Ahokainen and
Leppik, C‑434/04, EU:C:2006:609, paragraph 30, and in Rosengren
and Others, C‑170/04, EU:C:2007:313, paragraph 42).
Audace (C-114/15) concerned criminal proceedings against Audace, Phyteron,

the Association des éleveurs solidaires and nine livestock farmers (together
‘the livestock farmers involved’) concerning unauthorised parallel imports of
veterinary medicinal products. The Court had to consider, inter alia, to
whether national legislation complied with Articles 34 to 36 TFEU in so far as it
reserves access to parallel imports of veterinary medicinal products exclusively
to wholesale distributors in possession of the authorisation provided for under
Article 65 of Directive [2001/82], thus excluding those with retail distribution
rights and livestock farmers. The CoJ held:
69 In accordance with settled case-law, a measure having

equivalent effect to a quantitative restriction on imports can be justified,
for example, on grounds of the protection of human and animal health
only if that measure is appropriate for securing the achievement
of the objective pursued and does not go beyond what is
necessary in order to attain it (see, to that effect, judgment of
23 December 2015, Scotch Whisky Association and Others, C-333/14,
70 As regards the objective pursued by the legislation at issue

in the main proceedings, it must be noted that public health ranks
foremost among the assets or interests protected by Article 36
TFEU and it is for the Member States, within the limits imposed by
EU law, to decide on the degree of protection which they wish to
afford to human health and on the way in which that protection is
to be achieved (see, inter alia, judgments of 11 December
2003, Deutscher Apothekerverband, C-322/01, EU:C:2003:664,
paragraph 103, and of 9 December 2010, Humanplasma, C-421/09,
EU:C:2010:760, paragraph 32)…
72 … a national system which restricts access to parallel imports of

veterinary medicinal products only to persons holding a wholesale
distribution authorisation, within the meaning of Article 65 of Directive
2001/82, appears to be such as to ensure achievement of the objective
of the protection of human and animal health. An applicant for a

wholesale distribution authorisation must fulfil the obligations flowing
from Article 65 thereof, which require, in particular, as is clear from
paragraph 2 thereof, wholesale distribution to be carried out in
conditions meeting the requirements concerning the storage and
handling of veterinary medicinal products.
73 However, the obligation to have technically competent staff,

suitable and adequate premises and equipment which meet the
requirements concerning the storage and handling of veterinary
medicinal products in the Member State concerned, within the
meaning of Article 65(2) of the directive, cannot be imposed, in the
context of the procedure to obtain an MA, on livestock farmers
who import in parallel veterinary medicinal products for the needs
of their own livestock farms. That Article 65(2) specifically concerns
operators who wish to obtain a wholesale distribution authorisation for
veterinary medicinal products and sets out obligations as regards staff,
premises and equipment which are necessary in order to be able to
carry out that type of distribution. In the context of their agricultural
activities, those livestock farmers do not carry out any wholesale
distribution of the veterinary medicinal products which they
import. It follows that to impose obligations which seek to
circumscribe and regulate wholesale distribution of veterinary
medicinal products on those livestock farmers goes beyond what
is necessary to ensure protection of human and animal health.
[Emphasis added.]
Finally, in BS and CA (Marketing of cannabidiol (CBD)) (C-663/18,

EU:C:2020:938), former directors of a company whose object was the
marketing and distribution of a cannabidiol (‘CBD’) oil electronic cigarette, a
molecule present in hemp and part of the cannabinoid family.
B S and C A, former directors of a company marketing and distributing

annabidiol (‘CBD’) oil electronic cigarette, were the subject of criminal
proceedings before the criminal court of Marseille in circumstances where
French legislation provided that only the fibre and seeds of hemp could be put
to commercial use.
The CBD was produced in the Czech Republic from hemp plants grown lawfully
and using the entirety of the plant, the leaves and flowers included. It was then
imported into France to be packaged in electronic cigarette cartridges.
They received suspended sentences, together with €10,000 in fines and then
lodged appeals before the Court of Appeal, Aix-en-Provence against their
convictions.
The Court of Appeal questioned the conformity of the said legislation with EU
law and the CJEU found that EU law, in particular the provisions on the free
movement of goods, precluded such national legislation which was a MEQR.
The Court observed that the provisions on the free movement of goods within
the EU at Articles 34 and 36 TFEU were applicable, since the CBD at issue in
the main proceedings could not be regarded as a “narcotic drug”. It further
acknowledged that the prohibition on marketing CBD constituted a measure
having equivalent effect to quantitative restrictions on imports, prohibited by
Article 34 TFEU (para. 82).

Nevertheless, the Court examined whether France could justify the legislation
in accordance with the objective of protecting public health at Article 36 TFEU
As regards the scientific assessment to be carried out before the national court,
the Court’s insight is noteworthy:
93 . . . it is for the referring court to determine whether the

prohibition on marketing CBD lawfully produced in another
Member State – when it is extracted from the Cannabis sativa plant
in its entirety and not solely from its fibre and seeds – is
appropriate for securing the attainment of the objective of
protecting public health and does not go beyond what is
necessary for that purpose. However, it is for the Court of Justice to
provide the national court with all necessary information with a view to
offering guidance in that determination.
94 As regards the determination of whether that prohibition is

appropriate for securing the attainment of the objective of protecting
public health, it should be borne in mind that it became apparent, during
the hearing, that that prohibition would not affect the marketing of
synthetic CBD that had the same properties as CBD extracted from
the Cannabis sativa plant in its entirety and that could be used as
a substitute for the latter. It is for the referring court to verify that
circumstance, which, if proved, would be such as to indicate that the
legislation in the main proceedings was not appropriate for attaining that
objective in a consistent and systematic manner.
95 As regards the necessity of a prohibition on the marketing of CBD

where it is extracted from the Cannabis sativa plant in its entirety and
not solely from its fibre and seeds, it should be pointed out that the
French Republic is not required to demonstrate that the dangerous
property of such a product is identical to that of narcotic drugs
such as the substances listed in Schedules I and II of the Single
Convention. The fact remains that it is for the referring court to
assess the scientific data available and produced before it in order
to make sure, in the light of the case-law . . . that the real risk to
public health alleged does not appear to be based on purely
hypothetical considerations. [Emphasis added]
Accordingly, the Court held that Articles 34 and 36 TFEU precluded national
legislation prohibiting the marketing of CBD lawfully produced in another
Member State when it is extracted from the Cannabis sativa plant in its entirety
and not solely from its fibre and seeds, unless that legislation is appropriate for
securing the attainment of the objective of protecting public health and does
not go beyond what is necessary for that purpose. Regulations No 1307/2013
and No 1308/2013 did not apply to such legislation.
7.1.5 The final sentence of Article 36 TFEU

The CoJ in Officier van Justitie v. Sandoz BV [1983] ECR 2445 (Case 174/82)
then looked at the last sentence of Article 36 TFEU. The principle of
proportionality which underlies the last sentence of Article 36 TFEU required
that the measures taken by a Member State should be restricted to what was
necessary to attain the legitimate aim of protecting public health. The CoJ held
that the Member States had a wide discretion but nevertheless Member States
were required, in order to comply with the proportionality requirement, to

authorise the marketing of foodstuffs with added vitamins when the addition of
vitamins meets a real need, especially a technical or nutritional one.
20. … [EU] law permits national rules prohibiting without prior

authorisation the marketing of foodstuffs marketed in another Member
State to which vitamins have been added, provided that marketing is
authorised when the addition of the vitamins meets a real need,
especially a technical or nutritional one.
In Commission v. United Kingdom (UHT milk) [1983] ECR 203 (Case 124/81),
the CoJ considered UK rules requiring imported milk to be certified as having
been treated in a particular way, although the milk had been checked in the
exporting State. The CoJ held that the UK’s concerns could be met by less
restrictive means.
8. Indistinctly Applicable Rules

As was noted above, the definition of MEQRs set out in Directive70/52/EEC
(see Article 3) and/or in Procureur du Roi v. Dassonville [1974] ECR 837 (Case
8/74) did not require a measure to be discriminatory. Indistinctly applicable
measures are also caught by the prohibition in Article 34 TFEU.
Article 3 of Directive 70/52/EEC provided for:
… measures governing the marketing of products which deal, in

particular, with shape, size, weight, composition, presentation,
identification or putting up and which are equally applicable to domestic
and imported products, where the restrictive effect of such measures
on the free movement of goods exceeds the effects intrinsic to trade
rules.
This is the case, in particular, where:
- the restrictive effects on the free movement of goods are out of

proportion to their purpose;
- the same objective can be attained by other means which are less of
a hindrance to trade.
8.1 The Decision in Cassis
The leading case on indistinctly applicable rules is the decision in Rewe-

Zentrale AG v. Bundesmonopolverwaltung fur Brantweinn [1979] ECR 648
(Case 120/78), the Cassis case, where a large German supermarket took on
the German government. Cassis develops Dassonville. Article 34 TFEU can
apply to national rules which do not discriminate against imports but which
inhibit trade because the rules in the importing Member State are different from
the rules in the Member State of origin.
The applicant supermarket sought to import a French fruit liqueur, “Cassis de

Dijon” into Germany. German law required such liqueurs to have an alcoholic
strength of 25% and the importation of the Cassis de Dijon, which only had an
alcoholic strength of 20%, was refused. In the context of a preliminary

reference, a German Court asked if that rule was compatible with Article 34
TFEU. The CoJ reasoned:
8. In the absence of common rules relating to the production and

marketing of alcohol - a proposal for a Regulation submitted to the
Council by the commission on 7 December 1976 (Official Journal C 309,
p.2) not yet having received the Council’s approval - it is for the
Member States to regulate all matters relating to the production and
marketing of alcohol and alcoholic beverages on their own territory.
Obstacles to movement within the [European Union] resulting from

disparities between the national laws relating to the marketing of the
products in question must be accepted in so far as those provisions may
be recognized as being necessary in order to satisfy mandatory
requirements relating in particular to the effectiveness of fiscal
supervision, the protection of public health, the fairness of
commercial transactions and the defence of the consumer…
11. [Public health] considerations are not decisive since the consumer
can obtain on the market an extremely wide range of weakly or
moderately alcoholic products and furthermore a large proportion of
alcoholic beverages with a high alcohol content freely sold on the
German market is generally consumed in a diluted form.
12. The German government also claims that the fixing of a lower limit
for the alcohol content of certain liqueurs is designed to protect the
consumer against unfair practices on the part of producers and
distributors of alcoholic beverages.
This argument is based on the consideration that the lowering of the

alcohol content secures a competitive advantage in relation to
beverages with a higher alcohol content, since alcohol constitutes by
far the most expensive constituent of beverages by reason of the high
rate of tax to which it is subject.
Furthermore, according to the German government , to allow alcoholic

products into free circulation wherever, as regards their alcohol content
, they comply with the rules laid down in the country of production would
have the effect of imposing as a common standard within the
Community the lowest alcohol content permitted in any of the Member
States, and even of rendering any requirements in this field inoperative
since a lower limit of this nature is foreign to the rules of several member
states.
13. … the fixing of limits in relation to the alcohol content of beverages

may lead to the standardization of products placed on the market and
of their designations, in the interests of a greater transparency of
commercial transactions and offers for sale to the public.
However, this line of argument cannot be taken so far as to regard the

mandatory fixing of minimum alcohol contents as being an essential
guarantee of the fairness of commercial transactions, since it is a simple
matter to ensure that suitable information is conveyed to the purchaser
by requiring the display of an indication of origin and of the alcohol
content on the packaging of products.

14. It is clear from the foregoing that the requirements relating to the
minimum alcohol content of alcoholic beverages do not serve a
purpose which is in the general interest and such as to take
precedence over the requirements of the free movement of goods,
which constitutes one of the fundamental rules of the community.
In practice, the principle effect of requirements of this nature is to

promote alcoholic beverages having a high alcohol content by excluding
from the national market products of other Member States which do not
answer that description.
It therefore appears that the unilateral requirement imposed by the

rules of a Member State of a minimum alcohol content for the
purposes of the sale of alcoholic beverages constitutes an
obstacle to trade which is incompatible with the provisions of
Article [34 TFEU] of the Treaty.
There is therefore no valid reason why, provided that they have

been lawfully produced and marketed in one of the Member States,
alcoholic beverages should not be introduced into any other
Member State; the sale of such products may not be subject to a legal
prohibition on the marketing of beverages with an alcohol content lower
than the limit set by the national rules. [Emphasis added.]
The German measure was not a discriminatory measure. It applied to German

liqueurs as well as liqueurs imported from other Member States. The CoJ did
not address the issue of discrimination. The CoJ held that such an indistinctly
applicable measure could breach Article 34 TFEU, through the impossibility of
placing Cassis lawfully on the German market. Member States cannot prevent
products from other Member States being imported and marketed on the basis
that the imported goods do not satisfy local product content rules.
Wyatt and Dashwood20 state (at 412), “[t]he judgment in this case was one of
the great formative events in the establishment of the internal market.” They 21
also say (at 412), “[t]he ruling in Cassis is notable for two main reasons: first of
all, it lays down the principle of mutual recognition and secondly, it lays down
the mandatory requirements doctrine.”
8.1.1 Mutual Recognition

Wyatt and Dashwood22 explain (at 412) the principle of mutual recognition:
A Member State must recognise (and trust) regulatory standards in

other Member States so that once the goods have been lawfully
produced in one of the Member States they should be able to circulate
freely in the European Union, and be marketed elsewhere in the EU,
unless there is a valid reason to stop them. The importing Member
State can impose its own rules on imported products only to the extent
that is necessary to protect a mandatory requirement of public interest,
such as consumer protection, fiscal supervision, etc.
20 6th ed.
21 Ibid.
22 Ibid.

Wyatt and Dashwood23 note (at 412) that the mutual recognition principle “has
been one of the founding stones of the internal market.” Mutual recognition is
sometimes referred to as negative integration as it does not require one EU
standard for all goods.
8.1.2 Mandatory Requirements

The second aspect of the Cassis judgment is that permits justifications of
national rules where there is a mandatory requirement of public interest.
The CoJ built upon the rule of reason approach in Dassonville (in the absence
of Community harmonisation, reasonable measures could be taken by a
Member State to prevent unfair trade practices). Member State regulations
could be justified by one of the mandatory requirements; the effectiveness of
fiscal supervision, the protection of public health, the fairness of commercial
transactions and the defence of the consumer.
This list is not exhaustive. There can be no arbitrary discrimination and any
measure adopted for the purpose of one of the mandatory requirements must
be proportionate to the objective sought to be achieved. Germany sought to
justify the measure on the basis of public health.
The Cassis mandatory requirements and further mandatory requirements

elaborated in later case-law can only be used to justify indistinctly applicable
measures (i.e. indistinctly applicable in respect of origin). The Article 36 TFEU
exceptional categories are used to justify discriminatory quantitative restrictions
or MEQRs.
8.1.3 Significance of Cassis

The significance of the CoJ decision in Cassis making no reference to
discrimination is that Article 34 TFEU catches rules other than discriminatory
rules. The case-law is respect of discriminatory rules was discussed above and
that discriminatory rules are capable of justification if they meet the criteria set
down in Article 36 TFEU. Cassis catches rules which apply to imported and
domestic products, but which rules would be caught by the Cassis ruling?
8.2 Application of Cassis in subsequent case-law
In Italian State v. Gilli and Andres [1980] ECR 2071 (Case 788/79), importers
of apple vinegar from Germany into Italy were prosecuted for fraud as the
vinegar was made from apples rather than from wine. An Italian law provided
that only vinegar made from the fermentation of wine could be sold in Italy. The
CoJ considered that the Italian rule impeded EU trade. Italy sought to rely on
public health as a mandatory requirement. The CoJ did not consider apple
vinegar a threat to public health and considered that the rule was
disproportionate, and that proper labelling was a more proportionate response.
This case is one concerned with the content or characteristics of a good.
In Walter Rau Lebensmittelwerk v. De Smet Pvba [1982] ECR 3961 (Case

261/81), the CoJ considered a Belgian rule requiring all margarine to be
marketed in cube shaped packages. This requirement applied to Belgian as
well as imported margarine. It would be more difficult for non-Belgian
producers to comply with the rule, without incurring additional costs. The
23 Ibid.

dispute arose in the context of an alleged breach of contract case between the
manufacturer and the importer. The importer sought to argue that the Belgian
measure was justified on the grounds of consumer protection. The CoJ
considered that proper labelling would prevent customer confusion. This case
is one which is concerned with the packaging of a good.
In De Kikvorsch Groothandel [1983] ECR 947 (Case 94/82), importers of

German beer into the Netherlands were prosecuted for breaching two Dutch
rules. The first rule determined the amount of acid allowed in beer. The second
rule prohibited displaying the original wort strength on the bottle. Both
measures were indistinctly applicable restrictions on trade in that they applied
to Dutch produced beers as well as beers imported from other Member States.
The Dutch Government argued that the first rule was justified to protect the
typical sour taste of Dutch beer. The CoJ rejected this argument and again
suggested that adequate labelling would allow the consumer to select his usual
preference. The argued justification for the second rule was to prevent
consumer confusion, where Dutch law required alcohol strength to be shown,
the display of two strengths was liable to confuse the consumer. The Court
held that a Member State is entitled to take action to protect its consumers from
misleading information even where the consequence is a hindrance on the free
movement of goods. The Member State will have to demonstrate that there is
a genuine risk of confusion and that there is no less restrictive means of
achieving the objective.
Cinéthèque SA v. Fédération Nationale des Cinémas Français [1985] ECR

2605 (Cases 60 and 61/84), concerned a French rule prohibiting the hire or sale
of videos of films within the first year of release was a MEQR. The rule applied
without distinction as to the origin of the film, i.e. was indistinctly applicable.
The CoJ held that the rule was a MEQR as it restricted the overall import of
videos:
Such a system, if it applies without distinction to both video-cassettes

manufactured in the national territory and to imported video-cassettes,
does not have the purpose of regulating trade patterns; its effect is not
to favour national production as against the production of other Member
States.
Nevertheless, the application of such a system may create barriers to

intra-[EU] trade in video-cassettes because of the disparities between
the systems operated in different Member States and between the
conditions for the release of cinematographic works in the cinemas of
those States. In those circumstances a prohibition of exploitation laid
down by such a system is not compatible with the principle of free
movement of goods provided for in the Treaty unless any obstacle to
intra-[EU’] trade thereby created does not exceed what is necessary in
order to ensure that attainment of the objective in view and unless that
objective is justified with regard to [EU] law.
It was indicated above that the list of mandatory requirements in Cassis is not
exhaustive. In Cinéthèque a new mandatory requirement was recognised. The
French measure was justified on the basis “of encouraging cinematographic
distribution of film” [Emphasis added.]. Thus, Article 34 TFEU applied to this
rule but it was capable of being justified by reference to a (new) mandatory
requirement.

8.2.1 The Sunday Trading cases
In the UK there was a ban on Sunday trading. It was argued that this breached
Article 34 TFEU by reducing the volume of sales, and thereby reduced the level
of imports and that the rule amounted to a MEQR.
In Torfaen BC v. B & Q plc [1989] ECR 3851 (Case 145/88), B & Q challenged
the rule prohibiting Sunday trading arguing that the rule reduced overall trade.
A percentage of the good sole by B & Q were imported from other Member
States and B & Q argued that the ban on Sunday trading meant reduced trade
in these imported products. The rules applied to import and domestic products
alike.
The CoJ referred to Cinéthèque where it was held that the French prohibition
on the hiring of video cassettes was not compatible with the free movement of
goods unless any obstacle to EU trade thereby created did not exceed what
was necessary to ensure the attainment of the objective in view and unless that
objective was justified with regard to EU law. The Sunday trading ban was
caught by Article 34 TFEU, but it might be permissible if there was objective
justification and if the rule was proportionate. The CoJ stated that the latter
issue was to be determined by the national courts.
16. The question whether the effects of specific national rules do in

fact remain within the limit is a question to be determined by the
national court. [Emphasis added.]
That it was difficult for the national courts to apply the test is evidenced from
the subsequent case-law in the UK. The UK courts came to contradictory
decisions finding that the protection of workers appeared to justify a ban on
Sunday trading but the idea of keeping Sunday as a special day did not justify
the ban.
The CoJ in Union départementale des syndicats CGT de l'Aisne v SIDEF

Conforama, Société Arts et Meubles and Société Jima [1991] ECR 997 (Case
C-312/89) determined that Article 34 TFEU did not apply to a French law
prohibiting the employment of retail workers on a Sunday.
In Criminal proceedings against André Marchandise, Jean-Marie Chapuis and

SA Trafitex [1991] ECR 1027 (Case C-332/89) a Belgian law prohibiting the
employment of retail workers after twelve noon on a Sunday did not breach
Article 34 TFEU.
In Council of the City of Stoke-on-Trent and Norwich City Council v. B & Q plc
[1992] ECR I 6635 (Case C-169/91), the CoJ determined that Article 34 TFEU
did not apply to UK legislation prohibiting retailers from opening their premises
on Sundays.
There were conflicting decisions in the national courts and owing to the
confusion there was an increase in the number of preliminary references
seeking guidance in Article 34 TFEU cases. There was much academic debate
about whether the CoJ had gone too far in cases such as Cinéthèque by
bringing such measures within the ambit of Article 34 TFEU.

8.2.2 An alternative distinction?
White24 suggested a distinction could be drawn between the characteristics of
goods and selling arrangements, a distinction between the physical
characteristics of goods and how goods are sold. This is noteworthy as this was
the approach that was in fact adopted by the Court in the subsequent decision
in Keck and Mithouard.
8.3 The Decision in Keck and Mithouard
In Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097 (Case
C-267/91) (the Keck and Mithouard case) the CoJ chose to redefine its
approach, distinguishing between characteristics of goods and selling
arrangements.
The CoJ considered a French law prohibiting resale at a loss, a rule which
applied to French products as well as imported products. Keck and Mithouard,
two supermarket owners were prosecuted for breach of the French law. They
were prosecuted for selling coffee and beer at below the price at which it had
been purchased. In their defence they argued that the law prohibiting resale at
a loss was in breach of Article 34 TFEU, suggesting that the law adversely
affected imports which are often new entrants to the market and who might try
to acquire market share through low pricing.
The Court departed from earlier case-law, stating:
12 National legislation imposing a general prohibition on resale at a loss

is not designed to regulate trade in goods between Member States.
13 Such legislation may, admittedly, restrict the volume of sales,

and hence the volume of sales of products from other Member
States, in so far as it deprives traders of a method of sales
promotion. But the question remains whether such a possibility is
sufficient to characterize the legislation in question as a measure having
equivalent effect to a quantitative restriction on imports.
14 In view of the increasing tendency of traders to invoke [Article 34

TFEU] of the Treaty as a means of challenging any rules whose effect
is to limit their commercial freedom even where such rules are not
aimed at products from other Member States, the Court considers it
necessary to re-examine and clarify its case-law on this matter.
15 It is established by the case-law beginning with "Cassis de Dijon"

(Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung fuer
Branntwein [1979] ECR 649) that, in the absence of harmonization of
legislation, obstacles to free movement of goods which are the
consequence of applying, to goods coming from other Member States
where they are lawfully manufactured and marketed, rules that lay
down requirements to be met by such goods (such as those
relating to designation, form, size, weight, composition,
presentation, labelling, packaging) constitute measures of
equivalent effect prohibited by [Article 34 TFEU]. This is so even if
24“In Search of the Limits to Article 30 of the EEC Treaty” (1989) 26 CMLRev 235. Article 30
EEC later became Article 28 EC and in the Treaty of Lisbon became Article 34 TFEU.

those rules apply without distinction to all products unless their
application can be justified by a public-interest objective taking
precedence over the free movement of goods.
16 By contrast, contrary to what has previously been decided, the

application to products from other Member States of national
provisions restricting or prohibiting certain selling arrangements is
not such as to hinder directly or indirectly, actually or potentially,
trade between Member States within the meaning of the
Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those
provisions apply to all relevant traders operating within the national
territory and so long as they affect in the same manner, in law and
in fact, the marketing of domestic products and of those from other
Member States. [Emphasis added.]
Product characteristic rules are caught by Article 34 TFEU.
Selling arrangement rules are not necessarily caught by Article 34 TFEU. The
resale at loss rule was not caught by Article 34 TFEU.
Rules relating to characteristics of goods are governed by Article 34 TFEU as

they require imported goods to satisfy rules in addition to those of the State of
origin.
Rules relating to selling arrangements impose equal burdens on all goods.

They are not governed by Article 34 TFEU provided they affect in the same
manner of law or fact the domestic and imported goods. The reference, in
paragraph 16 to earlier decisions which the CoJ was reconsidering did not
identify the cases which were being departed from.25
The significance of Keck and Mithouard is that some indistinctly applicable

measures are not contrary to Article 34 TFEU at all. Therefore, they do not have
to be justified by the mandatory requirements. The decision in Keck and
Mithouard distinguishes between on the one hand, rules concerning product
characteristics, which fall within the ambit of Article 34 TFEU and which always
require justification to be permissible and on the other hand, selling
arrangements which sometimes fall outside Article 34 TFEU and do not have
to be justified.
Wyatt and Dashwood26 state (at 419), “[t]he latter [i.e. rules concerning selling
arrangements], notwithstanding the previous case-law of the Court, are no
longer held to hinder trade and to require justification provided they apply to all
relevant traders operating within the national territory, and so long as they affect
in the same manner, in law and in fact, the marketing of domestic products and
those of other Member States.” [Emphasis added.]
In subsequent cases, the CoJ excluded selling arrangements from governance

by Article 34 TFEU. In Criminal Proceedings against Tankstation ‘t Heustkle
vof and JEB Boermans [1994] ECR I 2199 (Case 401/92) the CoJ stated that
regulation of opening hours of petrol stations was not governed by Article 34
TFEU and was not an MEQR provided it applied to all traders in same manner.
In Semarco Casa v. Sindaco del Commune di Erbusco [1996] ECR I 2975 (C-
25 See ibid., at 682 for more detail.

26 6th ed.

418-93), rules regarding retail outlets trading hours (a selling arrangement) was
not an MEQR even though it may have had incidental effect on level of import
trade.
It is not always clear whether a measure is a selling arrangement.
In Sociéte d’Importation Edouard LeClerc-Siplec v. TFI Publicité SA [1995]

ECR I 179 (C-412/93), the CoJ held that advertising rules (which involved a
limited ban on advertising) fell outside Article 34 TFEU because they were rules
concerning selling arrangements.
A national rule requiring alteration of packaging or labelling of imported

products is not a selling arrangement but rather a rule concerned with the
physical characteristics of a good and therefore falls to be considered within
Article 34 TFEU: Commission v. Spain [2003] ECR I459 (Case C-12/00).
In Commission v. Ireland [2001] ECR I 4619 (Case C-30/99), a case concerned
with the physical characteristics of goods, Irish legislation on compulsory
hallmarking of precious metals which had the effect of prohibiting the marketing
in Ireland of precious metals marked in their Member State of origin was found
to be in breach of Article 34 TFEU. National legislation required precious
metals imported from other Member States, where they were lawfully traded
and hallmarked in accordance with the legislation of those States, to be
stamped with an additional hallmark in the importing State. This rendered the
import of such goods more difficult and costly. Such legislation therefore
amounted to a measure equivalent to a quantitative restriction and required
justification. In this case there was no justification.
In Verein gegen Unwesen in Handel und Gewerbe Köln v. Mars [1995] ECR I
1923 (C-470/93) a consumer association brought an action against Mars,
claiming that the marking of its ice cream bar wrappers with the logo ‘+10%’
violated the German Unfair Competition Law on the basis that the logo
obscured whether the price may likewise have been increased by 10% and
further that the logo may cause consumers to believe they were getting the
extra ice-cream covered by the logo, which took up more than 10% of the
surface area of the wrapper. The CoJ stated:
13. Although it applies to all products without distinction, a prohibition

such as that in question in the main proceedings, which relates to the
marketing in a Member State of products bearing the same publicity
markings as those lawfully used in other Member States, is by nature
such to hinder intra-Community trade. It may compel the importer to
adjust the presentation of his products according to the place where
they are to be marketed and consequently to incur additional packaging
and advertising costs.
14. Such a prohibition therefore falls within the scope of Article [34].
8.4 Qualifications of Keck and Mithouard
Craig and de Búrca27 state (at 683) that there are two important qualifications
of the Keck and Mithouard decision.
27 6th ed.

8.4.1 Rules which affect selling characterised as product rules
The first qualification suggested (at 683) by Craig and de Búrca28 is that it is
open to the CoJ to characterise rules which affect selling as part of the product
itself and therefore governed by Article 34 TFEU.
In one sense this is not a qualification of Keck and Mithouard, but rather an
indication that the line between product characteristics and selling
arrangements is not always clear cut. Is a free toy with a purchase of a
magazine part of the product characteristic or is it a selling arrangement?
In Vereinigte Familiapress Zeitungsverlags-und Vertreibs GmbH v. Heinrich

Bauer Verlag [1997] ECR I 3689 (Case 368/95) (the Familiapress case), the
CoJ considered an Austrian rule which prohibited magazine publishers from
including competitions in their magazines for which prizes were awarded.
Heinrich Bauer Verlag was a German publisher which published a magazine
containing crosswords for which prizes were offered. Austria submitted that the
rule related to sales promotion (i.e. was a selling arrangement) and thus fell
outside Article 34 TFEU:
11 The Court finds that, even though the relevant national legislation is
directed against a method of sales promotion, in this case it bears on
the actual content of the products, in so far as the competitions in
question form an integral part of the magazine in which they appear.
As a result, the national legislation in question as applied to the facts of
the case is not concerned with a selling arrangement within the meaning
of the judgment in Keck and Mithouard.
12 Moreover, since it requires traders established in other Member

States to alter the contents of the periodical, the prohibition at issue
impairs access of the product concerned to the market of the Member
State of importation and consequently hinders free movement of goods.
It therefore constitutes in principle a measure having equivalent effect
within the meaning of [Article 34 TFEU] of the Treaty. [Emphasis
added.]
The CoJ considered that the possibility of partaking in competitions bore on the
actual content of the magazine and that the rule impacted on the product
characteristic and therefore was caught by Article 34 TFEU.
Wyatt and Dashwood29 state (at 419):
Even though the rule concerned a method of sales promotion, i.e., a

selling arrangement, it also bore on the content of the product, and was
therefore to be considered a product requirement. The trader could not
in fact import his magazines in Austria, the country of destination,
without altering the content of the periodicals. Thus, if a rule can be
qualified at the same time as a product requirement and as a selling
arrangement, it will fall automatically within the scope of Article 34 TFEU
by virtue of being a product requirement.
28 Ibid.
29 6th ed.

8.4.2 If properly a “selling arrangement” but has a differential affect, in law or
in fact on the marketing of products imported from other Member States
than domestic products
The second qualification of Keck and Mithouard proposed by Craig and de
Búrca is found in the Keck and Mithouard judgment itself.
It is clear (at [16]) in Keck and Mithouard that even if a rule is concerned with a
selling arrangement that it will be governed by Article 34 TFEU if the rule has a
differential affect, in law or in fact, on the marketing of domestic products and
of those from other Member States. Thus, as noted (at 419) by Wyatt and
Dashwood30, “selling arrangements are in need of justification only if they are
directly or indirectly discriminatory.”
In Konsumentombudsmannen v. De Agostini (Svenska) Forlag AB and TV-

Shop I Sverige AB [1997] ECR I-3843 (C-34-36/95), the CoJ considered two
Swedish rules, a ban on advertising directed to under-12s and a ban on
commercials for skincare products.
42 As regards the second condition [of Keck and Mithouard], it cannot

be excluded that an outright ban, applying in one Member State, of a
type of promotion for a product which is lawfully sold there might have
a greater impact on products from other Member States.
43 ... in its observations De Agostini stated that television advertising

was the only effective form of promotion enabling it to penetrate the
Swedish market since it had no other advertising methods for reaching
children and their parents.
44 Consequently, an outright ban on advertising aimed at children less

than 12 years of age and of misleading advertising, as provided for by
the Swedish legislation, is not covered by [Article 34 TFEU] of the
Treaty, unless it is shown that the ban does not affect in the same way,
in fact and in law, the marketing of national products and of products
from other Member States.
45 In the latter case, it is for the national court to determine whether the
ban is necessary to satisfy overriding requirements of general public
importance or one of the aims listed in [ Article 36 TFEU] ... if it is
proportionate to that purpose and if those aims or requirements could
not have been attained or fulfilled by measures less restrictive of intra-
Community trade.
46 Further, according to settled case-law, fair trading and the protection

of consumers in general are overriding requirements of general public
importance which may justify obstacles to the free movement of goods
(Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein
(`Cassis de Dijon') [1979] ECR 649, paragraph 8).
47 Consequently, the answer to the question must be that, on a proper

construction of [Article 34 TFEU] of the Treaty, a Member State is not
precluded from taking, on the basis of provisions of its domestic
legislation, measures against an advertiser in relation to television
30 Ibid.

advertising, provided that those provisions affect in the same way, in
law and in fact, the marketing of domestic products and of those from
other Member States, are necessary for meeting overriding
requirements of general public importance or one of the aims laid down
in [Article 36 TFEU] of the Treaty, are proportionate for that purpose,
and those aims or overriding requirements could not be met by
measures less restrictive of intra-Community trade. [Emphasis added.]
In Konsumentombudsmannen v. Gourmet International Products [2001] ECR I

1795 (C-405/98), the Swedish Consumer Ombudsman sought an injunction
restraining Gourmet International Products from placing alcohol
advertisements in magazines.
Swedish rules on alcohol advertising were strict but did not apply to periodicals
aimed as those in for example the restaurant trade. Gourmet International
Products published a magazine which contained adverts for alcohol. 90% of
subscribers were trade and 10% private.
The CoJ held that the rules did not satisfy the Keck and Mithouard test as,
although indistinctly applicable as a matter of law, the prohibition would, as a
matter of fact affect imports more than domestic products.
Therefore, the Swedish rules constituted an MEQR requiring justification. As it
was an indistinctly applicable rule, justification would be by way of the
mandatory requirements. The advertising ban was caught by Article 34 TFEU
and it was for the national court to determine if the ban was proportionate to the
aim of preventing alcohol abuse.
In Criminal Proceedings against Franzen [1997] ECR I 5909 (Case C-189/95),

the CoJ considered a Swedish law requiring producers, wholesalers and
importers of alcohol to be licensed. The CoJ considered that the licensing
system was a MEQR.
70 In a national system such as that in question in the main

proceedings, only holders of production licences or wholesale licences
are allowed to import alcoholic beverages, that is to say traders who
fulfil the restrictive conditions to which issue of those licences is subject.
According to the information provided to the Court during the
proceedings, the traders in question must provide sufficient personal
and financial guarantees to carry on the activities in question,
concerning in particular their professional knowledge, their financial
capacity and possession of storage capacity sufficient to meet the
needs of their activities. Furthermore, the submission of an application
is subject to payment of a high fixed charge (SKR 25 000), which is not
reimbursed if the application is rejected. Finally, in order to keep his
licence, a trader must pay an annual supervision fee, which is also high
(between SKR 10 000 and SKR 323 750 for the basic amounts,
depending on the kinds of beverage and the quantities produced or
marketed).
71 The licensing system constitutes an obstacle to the importation of

alcoholic beverages from other Member States in that it imposes
additional costs on such beverages, such as intermediary costs,
payment of charges and fees for the grant of a licence, and costs arising
from the obligation to maintain storage capacity in Sweden.

…
73 Domestic legislation such as that in question in the main proceedings

is therefore contrary to [Article 34 TFEU] of the Treaty.
A common theme emanating from the above-mentioned cases is the reference

to contraventions of Article 34 TFEU inhibiting access to the market. Judicial
and academic literature has interrogated whether such a “market access test,”
whereby substantial restrictions on access to the market ought to be caught by
Article 34 TFEU, is firmly enshrined in case-law on QRs and MEQRs or whether
it is more of a concept or a slogan.31
In Leclerc-Siplec (Case C- 412/93), Advocate General Jacobs advocated such

an approach in his Opinion:
41. . . . . There is one guiding principle which seems to provide an

appropriate test: that principle is that all undertakings which engage
in a legitimate economic activity in a Member State should have
unfettered access to the whole of the Community market, unless
there is a valid reason for denying them full access to a part of that
market. In spite of occasional inconsistencies in the reasoning of
certain judgments, that seems to be the underlying principle which has
inspired the Court’s approach from Dassonville to Cassis de Dijon to
Keck. Virtually all of the cases are, in their result, consistent with the
principle, even though some of them appear to be based on different
reasoning.
42. If the principle is that all undertakings should have unfettered access
to the whole of the Community market, then the appropriate test in my
view is whether there is a substantial restriction on that access.
That would of course amount to introducing a de minimis test into
[Article 34 TFEU]. Once it is recognized that there is a need to limit
the scope of [Article 34 TFEU] in order to prevent excessive
interference in the regulatory powers of the Member States, a test
based on the extent to which a measure hinders trade between
Member States by restricting market access seems the most
obvious solution. Indeed it is perhaps surprising that, in view of
the avowed aim of preventing excessive recourse to [Article 34]
the Court did not opt for such a solution in Keck. The reason may
be that the Court was concerned lest a de minimis test, if applied to all
measures affecting trade in goods, might induce national courts, who
have primary responsibility for applying [Article 34], to exclude too many
measures from the scope of the prohibition laid down by that provision.
Caution must therefore be exercised and if a de minimis test is to be
introduced it will be necessary to define carefully the circumstances in
which it should apply.” [Emphasis added]
In Alfa Vita (C-158 and 159/04), Advocate General Maduro also referenced the
market access test:
45. . . . any measure which impedes to a greater extent the access

to the market and the putting into circulation of products from other
31J Snell, The notion of Market Access: A Concept or a Slogan? (2010) 47 CMLREV 437, at
470–471.

Member States is considered to be a measure having equivalent effect
within the meaning of Article [34]. A measure constitutes a barrier to
access to a national market where it protects the acquired position of
certain economic operators on a national market or where it makes
intra-Community trade more difficult than trade within the national
market. For example, in Deutscher Apothekerverband, the Court
considered a measure prohibiting the sale of medicinal products by mail
order to be a measure having equivalent effect on the ground that it
could impede access to the market for products from other Member
States more than it impedes access for domestic products.” [Emphasis
added]
Craig and de Búrca, however, identify the difficulties of the Court of Justice
adopting a market access test, noting, “a court may have to take into account
the range of goods affected, the existence or not of alternative selling
arrangements, and the nature of the restriction itself. This will not be an easy
task for the CJEU.”32
8.4.3 More Recent Case-Law on Selling Arrangements

The Doc Morris case (Deutscher Apothekerverband eV v. 0800 Doc Morris NV,
Jacques Waterval [2003] ECR I 4887 (Case C-322/01)), involved a Dutch
company which sold medicines over the internet. It sold prescription drugs only
with a prescription. It applied this rule strictly so that if a prescription was
required in the Member State of destination, it would only sell the drug on
prescription, even if it was a drug which could be sold in the Netherlands without
prescription.
German law prohibited the sale of medicinal products outside of pharmacies.

Proceedings were commenced in Germany by an association which protected
the interests of pharmacists arguing that the sale of medicinal products over
the internet was contrary to the German legislation. The German court referred
a question to the CoJ asking whether the German legislation was compatible
with Article 34 TFEU. The CoJ stated:
72. By contrast, the Court has accepted the relevance of the argument
that a prohibition on television advertising deprived a trader of the only
effective form of promotion which would have enabled it to penetrate a
national market (see De Agostini and TV-Shop, paragraph 43).
Furthermore, the Court has found that in the case of products such as
alcoholic beverages, the consumption of which is linked to traditional
social practices and to local habits and customs, prohibiting all
advertising directed at consumers in the form of advertisements in the
press, on the radio and on television, the direct mailing of unsolicited
material or the placing of posters on the public highway is liable to
impede access to the market for products from other Member States
more than it impedes access for domestic products, with which
consumers are instantly more familiar (see Case C-405/98 Gourmet
International Products [2001] ECR I-1795, paragraphs 21 and 24).

74. A prohibition such as that at issue in the main proceedings is
more of an obstacle to pharmacies outside Germany than to those
within it. Although there is little doubt that as a result of the prohibition,
pharmacies in Germany cannot use the extra or alternative method of
gaining access to the German market consisting of end consumers of
medicinal products, they are still able to sell the products in their
dispensaries. However, for pharmacies not established in Germany, the
internet provides a more significant way to gain direct access to the
German market. A prohibition which has a greater impact on
pharmacies established outside German territory could impede
access to the market for products from other Member States more
than it impedes access for domestic products.
75. Accordingly, the prohibition does not affect the sale of

domestic medicines in the same way as it affects the sale of those
coming from other Member States.
76. The answer to Question 1(a) is therefore that a national prohibition

on the sale by mail order of medicinal products the sale of which is
restricted to pharmacies in the Member State concerned, such as the
prohibition laid down in Paragraph 43(1) of the AMG, is a measure
having an effect equivalent to a quantitative restriction for the purposes
of Article [34 TFEU]. [Emphasis added.]
It is clear from paragraphs 74 and 75 of the judgment that the CoJ is looking at
the discriminatory impact of the German legislation. Thus as in Keck and
Mithouard selling arrangements are only caught by Article 34 TFEU when they
affect products imported from Member States in a different way to domestic
products. In considering whether the German legislation was justified the CoJ
distinguished between prescription medicines and non-prescription medicines.
The CoJ determined that Article 36 TFEU could be used to justify the German
rules insofar as it applied to prescription medicines but that it could not be used
to justify the rule in respect of non-prescription medicine.
More recent case-law on selling arrangements has also considered the concept
of the “use” of the product. In Commission v. Italy Case C‑110/05;
ECLI:EU:C:2009:66 (Italian trailers) the Commission brought infringement
proceedings against Italy on the basis that Italian law prohibited motorcycles,
mopeds, etc from towing trailers, even in the case of trailers specifically
designed for these vehicles.
The Commission argued that the effect of the prohibition was to prevent the
use of trailers lawfully produced and marketed in the Member States where
there was no such prohibition and to hinder their importation into, and sale in,
Italy and that same constituted a MEQR contrary to Article 34 TFEU.
The Court of Justice held:
56 . . . a prohibition on the use of a product in the territory of a Member

State has a considerable influence on the behaviour of consumers,
which, in its turn, affects the access of that product to the market of that
Member State.
57 Consumers, knowing that they are not permitted to use their

motorcycle with a trailer specially designed for it, have practically no

interest in buying such a trailer (see, by analogy, Case C‑265/06
Commission v Portugal [2008] ECR I‑0000, paragraph 33, concerning
the affixing of tinted film to the windows of motor vehicles). Thus, Article
56 of the Highway Code prevents a demand from existing in the market
at issue for such trailers and therefore hinders their importation.
58 It follows that the prohibition laid down in Article 56 of the Highway

Code, to the extent that its effect is to hinder access to the Italian market
for trailers which are specially designed for motorcycles and are lawfully
produced and marketed in Member States other than the Italian
Republic, constitutes a measure having equivalent effect to quantitative
restrictions on imports within the meaning of Article [34 TFEU], unless
it can be justified objectively.
The Court, however, agreed with Italy’s contention that said measure was
necessary ensure road safety, and constituted an overriding reason relating to
the public interest capable of justifying a hindrance to the free movement of
goods:
67 . . . the fact remains that Member States cannot be denied the

possibility of attaining an objective such as road safety by the
introduction of general and simple rules which will be easily understood
and applied by drivers and easily managed and supervised by the
competent authorities.
69 In the light of those factors, it must be held that the prohibition on

motorcycles towing trailers specially designed for them and lawfully
produced and marketed in Member States other than the Italian
Republic must be regarded as justified by reasons relating to the
protection of road safety”
Thus, this case is also noteworthy for adding an additional mandatory

requirement to the list discussed in detail below.
9. Justifications or Defences to Indistinctly Applicable Rules:

The Mandatory Requirements
The CoJ has (almost) consistently maintained that the list of justifications in
Article 36 TFEU is exhaustive where the rule attempted to be justified
discriminates between imports and domestic products.
It was noted above that when the CoJ determined in Cassis de Dijon that
indistinctly applicable measure could breach Article 34 TFEU, the CoJ also
determined that they were capable of being justified by one of a series of
mandatory requirements. In Cassis a number of mandatory requirements
were set out; the effectiveness of fiscal supervision, the protection of public
health, the fairness of commercial transactions and the defence of the
consumer. This list is not exhaustive.
In addition, there can be no arbitrary discrimination and any measure adopted

for the purpose of one of the mandatory requirements must be proportionate to
the objective sought to be achieved.

In the current state of the law, the Cassis mandatory requirements and further
mandatory requirements elaborated in later case-law are used to justify
indistinctly applicable measures. The Article 36 TFEU exceptional categories
are used to justify discriminatory quantitative restrictions or MEQRs.
It has been suggested that there should be one set of justifications/defences

applicable to both discriminatory and indistinctly applicable rules.
The rationale for the mandatory requirements is that many rules that
regulate trade are also capable of restricting trade, yet some serve
objectively justifiable purposes. The ‘list’ of mandatory requirements in
Cassis is sometimes referred to as the rule of reason, drawing upon
Dassonville to the effect that, in the absence of EU measures,
reasonable trade rules would be accepted in certain circumstances.
Two of the Cassis list of mandatory requirements were considered in

Commission v. Germany “Bier” [1987] ECR 1227 (Case 178/84), consumer
protection and public health. The CoJ considered a German law which
prohibited the marketing in Germany of beer as “bier” unless it satisfied the
German pure purity requirements. The CoJ considered the law an indistinctly
applicable measure. Germany argued that the law was necessary to protect
consumers. The CoJ did not accept either of the justifications, remarking:
32 Firstly, consumers' conceptions which vary from one Member State

to the other are also likely to evolve in the course of time within a
Member State. The establishment of the common market is, it should
be added, one of the factors that may play a major contributory role in
that development. Whereas rules protecting consumers against
misleading practices enable such a development to be taken into
account, legislation of the kind contained in article 10 of the
biersteuergesetz prevents it from taking place. As the Court has already
held in another context (Judgment of 27 February 1980 in Case 170/78
Commission v United Kingdom (1980) ECR 417), the legislation of a
Member State must not "crystallize given consumer habits so as to
consolidate an advantage acquired by national industries concerned to
comply with them".
33 Secondly, in the other Member States of the [EU] the designations

corresponding to the German designation "bier" are generic
designations for a fermented beverage manufactured from malted
barley, whether malted barley on its own or with the addition of rice or
maize. The same approach is taken in [EU] law as can be seen from
heading no 22.03 of the common customs tariff. The German legislature
itself utilizes the designation "bier" in that way in Article 9 (7) and (8) of
the biersteuergesetz in order to refer to beverages not complying with
the manufacturing rules laid down in article 9 (1) and (2).
34 The German designation "bier" and its equivalents in the languages

of the other Member States of the [EU] may therefore not be restricted
to beers manufactured in accordance with the rules in force in the
Federal Republic of Germany.
33 6th ed.

35 it is admittedly legitimate to seek to enable consumers who attribute
specific qualities to beers manufactured from particular raw materials to
make their choice in the light of that consideration. However, as the
Court has already emphasized (judgment of 9 December 1981 in Case
193/80 Commission v Italy (1981) ECR 3019), that possibility may be
ensured by means which do not prevent the importation of products
which have been lawfully manufactured and marketed in other Member
States and, in particular, "by the compulsory affixing of suitable labels
giving the nature of the product sold ". By indicating the raw materials
utilized in the manufacture of beer "such a course would enable the
consumer to make his choice in full knowledge of the facts and would
guarantee transparency in trading and in offers to the public ". It must
be added that such a system of mandatory consumer information must
not entail negative assessments for beers not complying with the
requirements of article 9 of the biersteuergesetz.
36 Contrary to the German government's view, such a system of

consumer information may operate perfectly well even in the case of a
product which, like beer, is not necessarily supplied to consumers in
bottles or in cans capable of bearing the appropriate details. That is
borne out, once again, by the German legislation itself. Article 26 (1)
and (2) of the aforementioned regulation implementing the
biersteuergesetz provides for a system of consumer information in
respect of certain beers, even where those beers are sold on draught,
when the requisite information must appear on the casks or the beer
taps.
Another German law was also challenged in the same case, an absolute
prohibition of the marketing of beer containing additives. Public health is found
both in Article 36 TFEU and in the Cassis mandatory requirements list.
53 Consequently, in so far as the German rules on additives in beer

entail a general ban on additives, their application to beers imported
from other member states is contrary to the requirements of [EU] law as
laid down in the case-law of the court, since that prohibition is contrary
to the principle of proportionality and is therefore not covered by the
exception provided for in [Article 36 TFEU].
10. Mandatory Requirements beyond the Cassis list

Mandatory requirements are essentially justifications for indistinctly applicable
quantitative restrictions or MEQRs.
The following mandatory requirements have been added to the list;

environmental protection in Commission v. Denmark [1988] ECR 4607 (Case
302/86); pluralism of the press in Vereinigte Familiapress Zeitungsverlags-und
Vertreibs GmbH v. Heinrich Bauer Verlag [1997] ECR I 3689 (Case 368/95);
encouraging cinematographic distribution of film in Cinéthèque SA v.
Fédération Nationale des Cinémas Français [1985] ECR 2605 (Cases 60 and
61/84); opening hour rules in respect the Member States had a margin of
discretion by reference social and political choices in Torfaen BC v. B & Q plc
[1989] ECR 3851 (Case 145/88) and fundamental rights in Schmidberger v.
Austria [2003] ECR I 5659 (C-112/00).

In Schmidberger, Austria sought to derogate from free movement provisions in
the Treaty in order to protect fundamental rights. Austria justified the temporary
closure of roads between Austria and Italy to allow an environmental
demonstration, citing freedom of expression and the right to assembly. The CoJ
held that the Austrian decision not to ban the environmental protest which led
to the motorway closure was governed by Article 34 TFEU to the extent that it
had impeded trade. The CoJ then considered whether the restrictions on free
movement were justified The CoJ stated that fundamental rights were part of
the Community legal order but that fundamental rights and the principles of free
movement of goods were not absolute. The CoJ then weighed the interests to
see if a fair balance was struck. The CoJ determined that restrictions on free
movement of goods were proportionate. The CoJ considered that the national
authorities were reasonably entitled, having regard to the wide discretion
accorded to them to consider that the legitimate aim of the demonstration could
not be achieved in the present case by measures less restrictive of intra-EU
trade.
10.1 Should the same Justifications be available for discriminatory and

indistinctly applicable measures?
Craig and de Búrca34 submit (at 705):
There is much to be said for simplification. It would be best for the same
justifications to be available in principle, irrespective of whether the
measure is discriminatory or indistinctly applicable, although greater
justification may be required for discriminatory measures.
Some justifications are covered by both lists while some justifications are only
on the “mandatory requirements” list.
11. Conclusion
This chapter is concerned with the Treaty prohibition of quantitative restrictions
and measures equivalent to quantitative restrictions. The Treaty contains a
prohibition in respect of imports at Article 34 TFEU and in respect of exports in
Article 35 TFEU. This chapter has focused on imports.
The CoJ broadly interpreted the meaning of MEQRs in Procureur du Roi v

Dassonville [1974] ECR 837 (Case 8/74).
The chapter explored some of the CoJ’s case law in respect of discriminatory
rules caught by Article 34 TFEU. The CoJ takes a strict view of such
discriminatory measures.
Articles 34 and 35 TFEU are not absolute and it is possible to justify

discriminatory measures by reference to Article 36 TFEU.
For a discriminatory quantitative restriction to be justified, it must satisfy several

conditions:
34 Ibid.

(i) it must fall into one of the six exceptional categories listed in
Article 36 TFEU;
(ii) it must not be arbitrarily discriminatory;
(iii) it must not constitute a disguised restriction on trade between

Member States; and
(iv) it must adhere to the principle of proportionality whereby

measures taken by a Member State should be restricted to what
is necessary to attain the legitimate aim pursued.
In respect of discriminatory measures, the list of six justifications in Article 36

TFEU is generally considered to be an exhaustive list (with perhaps the
additional possibility of justification on environmental grounds).
It had been hinted at in Dassonville but was expressly held by the CoJ in Rewe-
Zentrale AG v. Bundesmonopolverwaltung fur Brantweinn [1979] ECR 648
(Case 120/78), the Cassis case that Article 34 TFEU prohibited indistinctly
applicable measures in addition to the discriminatory measures discussed
earlier. The judgment is important for three reasons. First, that Article 34 TFEU
applies to indistinctly applicable measures. Secondly, that it provides for the
principle of mutual recognition. Thirdly, it lays down the rule of reason or
mandatory requirements doctrine, a series of justifications for indistinctly
applicable rules which otherwise breach Article 34 TFEU.
The decision in Cassis led to some confusion about what rules were caught by
Article 34 TFEU. The CoJ departed from its earlier case-law and drew a new
distinction in Criminal Proceedings against Keck and Mithouard [1993] ECR I-
6097 (Case C-267/91) (the Keck and Mithouard case). The CoJ drew a
distinction between rules relating to product characteristics which are caught
by Article 34 TFEU and selling arrangements which are only sometimes caught
by Article 34 TFEU; the significance of the distinction being that selling
arrangements falling outside of Article 34 TFEU were permissible without
justification.
Craig and de Búrca35 set out (at 683 et seq.) two qualifications to Keck and
Mithouard. First, it is open to the CoJ to characterise rules which affect selling
as part of the product itself and therefore governed by Article 34 TFEU.
Secondly, even if a rule was properly characterised as a “selling arrangement”
but had a differential affect, in law or in fact on the marketing of products
imported from other Member States than domestic products it would be
governed by Article 34 TFEU.
Indistinctly applicable measures are justified by reference to the mandatory

requirements, a non-exhaustive list of justifications set out in the case-law of
the CoJ. The issue of whether the same justifications should be available in
respect of discriminatory rules and indistinctly applicable rules was raised.
A useful diagram explaining the application of Articles 34 and 36 TFEU can be

found in Foster on EU Law (4th ed.) (at 274).
35 Ibid.

Ireland, 2008), chapter 2, pp. 46-58
Maxwell, 2011), chapter 14
o Foster, Foster on EU Law (7th ed., Oxford University Press, 2019), chapter
8
o Weatherill and Beaumont, EU Law (3rd ed., Penguin, 1999), chapters 15,
16, and 17
o Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Brantweinn [1979]
ECR 648 (Case 120/78), (the Cassis de Dijon case)
o Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097
(Case C-267/91)
o Communication from the Commission concerning the consequences of the
judgment given by the Court of Justice on 20 February 1979 in Case 120/78
(“Cassis de Dijon”) C256/2 OJ 1980, 3/10/80.

Chapter 13
Free Movement of Workers
1. Required Reading
Cambridge University Press, 2019), chapters 19 and 20
o The Citizenship Directive (Directive 2004/38/EC on the rights of citizens
of the Union and their family members to move and reside freely within
the territory of the Member States, [2004] OJ L158/77)
o Articles 45, 46, 47, and 48 TFEU and Article 18 TFEU
2. Introduction: Free Movement of Persons (Workers)

Free Movement of Persons is one of the four fundamental freedoms of EU law.
In the next chapter we will examine EU citizenship. One of the EU citizenship
rights explored is the right to “move and reside”, subject to limits and conditions,
in another Member State of the EU. This chapter explores free movement of
workers. Later chapters will examine freedom of establishment (i.e. free
movement of self-employed persons) and of services.
Wyatt and Dashwood state (at 703):
The original EEC Treaty provided for a right to move and reside across
the Community only for economically active (workers and self-
employed) Union citizens...the [CoJ] not surprisingly interpreted the
Treaty provisions and the relevant secondary legislation in a generous
and purposive way protecting the worker as a person as well as a ‘factor
of production’.

Free Movement of Workers was provided for in the founding treaties. The
ECSC and Euratom Treaties contained free movement rights for workers in the
respective industries of those Treaties. The EEC Treaty was drafted more
broadly.
Post-Lisbon, the provisions concerning workers are in Articles 45-48 TFEU.36
1. Freedom of movement for workers shall be secured within the

Union.
2. Such freedom of movement shall entail the abolition of any
discrimination based on nationality between workers of the
36 Previously at Articles 39-42 EC. Originally Articles 48-52 EEC.

37 Ex Article 39 EC

Member States as regards employment, remuneration and
other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds
of public policy, public security or public health:
(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States
for this purpose;
(c) to stay in a Member State for the purpose of
employment in accordance with the provisions
governing the employment of nationals of that State laid
down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after
having been employed in that State, subject to
conditions which shall be embodied in implementing
regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in

the public service.
Article 46 TFEU38 provides for said legislation to be enacted pursuant to

ordinary legislative procedure and after consulting the Economic and Social
Committee.
Article 47 TFEU concerns a joint programme encouraging the exchange of

young workers and Article 48 TFEU is concerned with social security provisions
in respect of workers.
Article 18 TFEU is the non-discrimination provision and provides:
Within the scope of application of the Treaties, and without prejudice to

any special provisions contained therein, any discrimination on the
grounds of nationality shall be prohibited.
3.1 Some key points of Article 45 TFEU
Article 45 TFEU evidences a cross-border element. It aims to secure free

movement for workers throughout the EU.
in order for [Article 45 TFEU] to apply there must be a cross-border

element. This is present when:
(i) the worker moves to another Member State and resides

there;
(ii) when the worker resides in a member state but is
employed in another one (frontier worker);
(iii) when a worker returns to his/her State of origin after
having exercised his [Article 45 TFEU] rights by working
in another Member State. Here, the worker benefits from
the protection of Community law against his/her Member
39 Citing, inter alia, Case C-433/93 Ioannis Vougioukas [1995] ECR I 4033.

State as though she/he were a national of another
Member State.
They40 further state (at 708), “a cross-border element is always necessary, and
[Article 45 TFEU] does not extend to a situation wholly internal to a Member
State.” A sufficient cross-border element is evidenced where a worker works
in his home State but resides across the border in another Member State;
Hartmann v. Freistaat Bayern [2007] ECR I 6303 (Case C-212/05).
Article 45 TFEU, represents an application of the Article 18 TFEU41 principle of

non-discrimination on the grounds of nationality. It will be seen that the case-
law of the CoJ has also determined that non-discriminatory rules may be caught
by Article 45 TFEU. These issues will be discussed further below.
It was not clear from the text of Article 45 TFEU whether it applied only to EU
nationals or also to workers of other nationalities resident and working in the
EU. The secondary legislation adopted under Article 46 TFEU, in particular
Regulation 1612/68, restricted the freedom to workers who are nationals of
Member States.
4. Direct Effect of Article 45 TFEU

Article 45 TFEU is vertically directly effective and can be relied upon against
the States and state bodies (See Royer [1977] ECR 497 (Case 48/75),
paragraph 23 and Van Duyn v. Home Office [1974] ECR 1337 (Case 41/74)).
Article 45 TFEU can be relied upon by a worker but also by for an example an
employer who wishes to employ a national of another Member States (See
Clean Car [1998] ECR I 2521 (Case C-350/96)).
The CoJ has also determined that Article 45 TFEU is not just of vertical direct
effect.
In Walrave and Koch v. Association Union Cycliste Internationale [1974] ECR

1405 (Case 36/74), the CoJ ruled in a case concerning a national cycling
association, that Article 45 TFEU was capable of being invoked against private
bodies who had the power to make rules governing employment.
17. Prohibition of such discrimination does not only apply to the

actions of public authorities but extends likewise to rules of any
other nature aimed at regulating in a collective manner gainful
employment and the provision of services.
18. The abolition as between Member States of obstacles to

freedom of movement for persons and to freedom to provide
services, which are fundamental objectives [the EU....], would
be compromised if the abolition of barriers of national origin
could be neutralized by obstacles resulting from the exercise of
their legal autonomy by associations or organizations which do
not come under public law.
40 Citing, inter alia, Case175/78 R v. Saunders [1979] ECR 1129.


Union Royale des Sociétés de Football Association v. Bosman [1995] ECR I
4921 (Case C-415/93) concerned a Belgian professional footballer who was
employed by RC Liège, a Belgian first division club. Bosman was entitled to
rely on Article 45 TFEU against the international football association which was
not a State body. He successfully challenged rules laid down by sporting
associations, under which a professional footballer of one Member State, on
the expiry of his contract, could not be employed by a club of another Member
State unless the new club paid to the old club a transfer, training or
development fee.
82. [Article 45 TFEU] not only applies to the action of public

authorities but extends also to rules of any other nature aimed
at regulating gainful employment in a collective manner.
This case is discussed further below.
In Angonese v. Cassa di Riparimo di Bolzano SpA [2000] ECR 4139 (Case C-

281/98), a case where a pre-condition to employment was possession of a
bilingualism certificate issued by a specified local authority, the CoJ held that
the non-discrimination on the grounds of nationality aspect of Article 45 TFEU
was capable of being invoked against an individual employer who refuses to
employ someone on the grounds of nationality. The CoJ stated:
32. The Court has held that the abolition, as between Member
States, of obstacles to freedom of movement for persons would
be compromised if the abolition of State barriers could be
neutralised by obstacles resulting from the exercise of their legal
autonomy by associations or organisations not governed by
public law (see Walrave, paragraph 18, and Case C-415/93
Union Royale Belge des Sociétés de Football Association and
Others v Bosman and Others [1995] ECR I-4921, paragraph
83).
33. Since working conditions in the different Member States are
governed sometimes by provisions laid down by law or
regulation and sometimes by agreements and other acts
concluded or adopted by private persons, limiting
application of the prohibition of discrimination based on
nationality to acts of a public authority risks creating
inequality in its application (see Walrave, paragraph 19, and
Bosman, paragraph 84).
34. The Court has also ruled that the fact that certain provisions
of the Treaty are formally addressed to the Member States
does not prevent rights from being conferred at the same
time on any individual who has an interest in compliance
with the obligations thus laid down (see Case 43/75
Defrenne v Sabena [1976] ECR 455, paragraph 31). The Court
accordingly held, in relation to a provision of the Treaty which
was mandatory in nature, that the prohibition of discrimination
applied equally to all agreements intended to regulate paid
labour collectively, as well as to contracts between individuals
(see Defrenne, paragraph 39).
35. Such considerations must, a fortiori, be applicable to Article [45
TFEU] of the Treaty, which lays down a fundamental freedom
and which constitutes a specific application of the general
prohibition of discrimination contained in [Article 18 TFEU). In

that respect, like Article 157 TFEU42 … it is designed to ensure
that there is no discrimination on the labour market.
36. Consequently, the prohibition of discrimination on grounds of
nationality laid down in Article [45 TFEU] of the Treaty must be
regarded as applying to private persons as well. [Emphasis
added. Footnote added]
On the facts, the CoJ held that Article 45 TFEU precludes an employer from
requiring persons applying to take part in a recruitment competition to provide
evidence of their linguistic knowledge exclusively by means of one particular
diploma issued only in one particular province of a Member State.
Wyatt and Dashwood explain (at 709):
In Angonese the Court was quite careful in delimiting the possibility to

rely on Article 45 TFEU against a private party to claims relating to
discrimination on the grounds of nationality. To extend the horizontal
application of Article 45 TFEU also to non-discriminatory barriers
…would in fact be a step too far in that it would risk unduly limiting the
contractual freedom of private parties.
Angonese introduces a distinction between the law on free movement

of workers and that governing the free movement of goods, since the
[CoJ] made clear that Article 28 [TFEU] applies only to state measures,
and not to those adopted by private actors.”
Thus while Article 45 TFEU is capable of horizontal direct effect, this is limited
to the aspect of Article 45 TFEU governing non-discrimination on the grounds
of nationality.
5. Secondary Legislation
Article 46 TFEU provides for EC legislation to bring about the freedoms set out
in Article 45 TFEU. A series of directives and regulations were adopted to
govern the conditions of entry and residence of workers and their families.
5.1 The Citizenship Directive
Recently much of the legislation is consolidated in the Citizenship Directive

(Directive 2004/38/EC on the rights of citizens of the Union and their family
members to move and reside freely within the territory of the Member States,
[2004] OJ L158/77). Directive 2004/38 EC was implemented in Ireland by
European Communities (Free Movement of Persons) (No. 2) Regulations,
2006. These Regulations have now been replaced by the European
Communities (Free Movement of Persons) Regulations 2015.
Directive 2004/38 EC replaced and consolidated much of the pre-existing

legislation. It replaced Directive 64/221 governing the derogations from free
movement and Directive 68/360 which governed the formalities of entry and
residence of workers. It amends Regulation 1612/68 on the equal treatment

43 5th ed.

principle. It replaced Regulation 1251/70 which governed the conditions under
which a worker and family may remain in the territory of a Member states
following the worker’s retirement, permanent incapacity to work or death.
Economic migrants (workers, self-employed, and those receiving a service)

“have always had the right to enter and reside in that Member State. The right
derives directly from the Treaty and is only detailed in secondary legislation.”44
Furthermore, economically active migrants have always enjoyed the right to
equal treatment in respect of those benefits.
The Citizenship Directive will be explored below, from the perspectives of the
worker, those who retain worker status and jobseekers.
Articles 4 and 5 of the Citizenship Directive govern entry and exit.
Craig and de Búrca point out (at 771), “the rights to work and reside are not
conditional upon initial satisfaction of the formalities for which the Directive
provides.”
Several provisions including Article 5(5) provide for the right of Member States
to impose proportionate and non-discriminatory penalties for non-satisfaction
of formal requirements. It is clear from earlier decisions of the CoJ (for example
the decision in MRAX v. Belgium [2002] ECR I 6591 (Case C-459/99)) that
refusal of entry, deportation or revocation of the right of residence would be
considered disproportionate. In MRAX v. Belgium [2002] ECR I 6591 (Case C-
459/99), the CoJ considered it was disproportionate to send back a third
country national, who was married to an EU national, who did not have a valid
visa but was able to prove his identity.
The Citizenship Directive provides for three time periods; a right of residence
up to three months (Article 6), a right of residence after three months (Article
7) and a right of permanent residence (Article 16).
All Union citizens shall have a right of residency on the territory of

another Member State for a period of longer than three months if they
(a) Are workers or self-employed persons in the host Member State; or

...
For the purposes of paragraph 1(a), a Union citizen who is no longer a

worker or self-employed person shall retain the status of worker or self-
employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an

illness or accident;
(b) he/she is in duly recorded involuntary unemployment
after having been employed for more than one year and
44Wyatt and Dashwood, at 664 (citing Directive 2004/38 EC and the earlier legislation which it
repeals or amends).

has registered as a job-seeker with the relevant
employment office;
(c) he/she is in duly recorded involuntary unemployment
after completing a fixed-term employment contract of
less than a year or after having become involuntarily
unemployed during the first twelve months and has
registered as a job-seeker with the relevant employment
office. In this case, the status of worker shall be retained
for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is
involuntarily unemployed, the retention of the status of
worker shall require the training to be related to the
previous employment.
One of the categories of citizen who has a right of residence in a host Member
State for longer than three months is workers (Article 7(1)(a)). A worker is
entitled to this right to reside upon production of evidence as to their economic
activity, which in the context of an employed person is confirmation of
engagement from the employer, provided only as per the case-law of the CoJ
that the economic activity is genuine and not on such a small scale so as to be
marginal and ancillary.
This right of residence of greater than three months is extended to family

members accompanying or joining a Union citizen worker (Article 7(1)(d)). This
right extends to family members who are not nationals of a Member State
(Article 7(2)). Article 7(3) sets out when “worker” status is retained. Retention
of worker status is discussed further below.
Article 16 of the Citizenship introduced a right of permanent residence for EU

nationals and their families after five years’ continuous residence in another
member State. Workers are clearly encompassed by that provision.
The Directive also permits of workers to acquire a right of permanent residence

sooner than the five-year period in specified situations. Recital 19 of the
Citizenship Directive states:
Certain advantages specific to Union citizens who are workers or self-

employed persons and to their family members, which may allow these
persons to acquire a right of permanent residence before they have
resided five years in the host Member State, should be maintained, as
these constitute acquired rights, conferred by Commission Regulation
(EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in
the territory of a Member State after having been employed in that State
and Council Directive 75/34/EEC of 17 December 1974 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.
Certain exemptions from the five-year period are provided in Article 17. For
example, Article 17(1) provides that the right of permanent residence shall be
enjoyed after a period of less than 5 years by a worker (or self-employed
person) who at the time they stop working have reached the age to receive the
old age pension or take early retirement, providing they have been working in
that Member State for at least the preceding twelve months and have resided
there continuously for more than three years. There are also exemptions in

respect of incapacity and involuntary unemployment. Article 18 concerns the
right of permanent residence of family members of EU nationals (including
workers) who have satisfied the five-year time period.
Jobseekers are also protected by Articles 45 TFEU and the Citizenship

Directive.
Article 14(4)(b) of the Directive provides an expulsion measure cannot be

adopted against a Union citizen or his family if “the Union citizens entered the
territory of the host State in order to seek employment. In this case, the Union
citizens and their families may not be expelled for as long as the Union citizens
can provide evidence that they are continuing to seek employment and have a
genuine chance of being engaged.”
While jobseekers are protected from expulsion, Member States are not obliged
to grant them social benefits during the job-seeking period (Article 24 of the
Citizenship Directive) but the host Member State is required to afford them
equal treatment in respect of social assistance to facilitate job-seeking. (See
the case-law of the CoJ discussed below.)
Recital 21 of Directive 2004/38 EC states “...it shall be left to the host Member
State to decide whether it will grant social assistance during the first three
months of residence, or for a longer period in the case of job-seekers, to Union
citizens other than those who are workers or self-employed persons or who
retain that status or their family members, or maintenance assistance for
studies, including vocational training, prior to the acquisition of the right of
permanent residence, to these same persons.”
Article 23 provides that the family members of a Union citizen who have the
right of residence have the right to take up employment (or self-employment).
Wyatt and Dashwood emphasise (at 681), “they have a right to pursue an
economic activity only in the State where they have a right to reside, i.e. a
cross-border element needs to be present.” A family member’s right of
residence is dependent on the right to reside of the Union citizen.
Article 17(4) of the Citizenship Directive provides:
If, however, the worker or self-employed person dies while still working
but before acquiring permanent residence status in the host Member
State on the basis of paragraph 1, his family members who are residing
with him in the host Member State shall acquire the right of permanent
residence there, on condition that:
(a) the worker or self-employed person had, at the time of death,
resided continuously on the territory of that Member State for two
years; or
(b) the death resulted from an accident at work or an occupational
disease; or
(c) the surviving spouse lost the nationality of that Member State
following marriage to the worker or self-employed person.
Article 12 provides for the retention of a right of residence for family members
on the death or departure of the Union citizen pursuant to certain conditions.
Article 13 provides for the retention of a right of residence for family members
on divorce, annulment of marriage or termination of registered partnership

pursuant to certain conditions. Thus the Directive clarifies issues raised in
cases such as Diatta v. Land Berlin [1985] ECR 567 (Case 267/83) and R v.
Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State
for the Home Department [1992] ECR I 4265 (Case C-370/90).
In the context of both Articles 12 and 13 the family member who retains the
right of residence “has to satisfy the conditions that are imposed on Union
citizens in order to gain residence. Thus, they must be economically active
(employed or self-employed), or possess sufficient resources and
comprehensive health insurance so as not to become a burden on the social
assistance of the host State.”45 Article 35 makes clear that no rights will accrue
from “marriages of convenience”. (See also Secretary of State for the Home
Department v. Akrich [2003] ECR I 9607 (Case C-109/01).)
5.2 Legislation
For many years the principle legislation was Regulation 1612/68. Articles 10
and 11 of this Regulation were repealed and replaced by the Citizenship
Directive but for a period the balance of Regulation 1612/68 remained in force.
Regulation 492/2011 of the European Parliament and of the Council on
freedom of movement for workers within the Union (codification) of 5 April 2011,
repealed Regulation 1612/68 but codified it and its amendments.
Regulation 492/11 provides for equality of access to employment for all EU

nationals, equality of treatment in employment right and housing rights, the right
for a worker to be joined by his family, and the right for his children to be
educated on the same terms as the children of nationals of the host Member
State.
Articles 1 and 2 of Regulation 492/11 provide for a right to take up employment

in a host State under the same conditions as nationals without discrimination.
Article 3(1) permits imposition of linguistic requirements: see Groener v.
Minister for Education [1989] ECR 3967 (Case 379/87).
Article 7 of Regulation 492/11 prohibits discrimination against workers on

grounds of nationality:
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. He shall also, by virtue of the same right and under the same
conditions as national workers, have access to training in vocational
schools and retraining centres.
4. Any clause of a collective or individual agreement or of any other
collective regulation concerning eligibility for employment,
remuneration and other conditions of work or dismissal shall be null
and void in so far as it lays down or authorises discriminatory
45 Wyatt and Dashwood, at 862.

conditions in respect of workers who are nationals of the other
Member States.
In Commission v. Greece [1998] ECR I 1085 (Case C-187/96), the CoJ held
that a Member State which, by regulation or administrative practice, renders it
absolutely impossible for employment in the public service of another Member
State to be taken into account for the purposes of granting to an employee in
the national public service a seniority increment and of grading him on the
salary scale, whereas periods of employment completed in the national public
service are, in certain cases, taken into account, is in breach of its obligations
under EU law, in particular under Article 45 TFEU and Article 7(1) of Regulation
No 1612/68 which was in identical terms to Article 7(1) of Regulation 492/2011.
The national rule, which plainly operated to the detriment of migrant workers
who have spent part of their working life in the public service of another Member
State, is therefore such as to contravene the principle of non-discrimination
enshrined in Article 45 TFEU together with Regulation 1612/68.46
Article 7(2) (again, a provision which is in identical terms in both Regulations)

has given rise to much case-law. In Cristini v. SNCF [1975] ECR 1085 (Case
32/75), the CoJ held that Article 7(2) included all social and tax advantages and
not just those linked to the contract of employment. A widow of an Italian SNCF
worker claimed an entitlement to reduced fares, an advantage which was
available to the widows of French SNCF workers. The SNCF said it was not in
the contract of employment. The CoJ considered that the social advantage
applied not just to workers but to the surviving family members of a deceased
worker.
In Ministre Public v. Even and ONPTS [1979] ECR 2019 (Case 207/78), the
CoJ considered a Belgian rule by which a reduced pension was paid in the
event of early retirement. Belgian nationals who had served in the Allied forces
and who were in receipt of an invalidity pension granted by an Allied nation
were exempt from this reduction. Gilbert Even, a French national, who was in
receipt of a war service invalidity pension claimed that there was discrimination
on the grounds of nationality. The CoJ stated:
20. Regulation (EEC) no 1612/68, which was adopted in

implementation of [Articles 45 and 46 TFEU] and within the
context of the measures adopted by [another Regulation], aims
to achieve freedom of movement for workers within the [EU].
21. For this purpose it provides for the abolition of all differences in
treatment between national workers and workers who are
nationals of the other Member States as regards conditions of
46 See also Krah (C-703/17, EU:C:2019:850) where the Court held that Austrian rules for the
purposes of grading the salaries of its postdoctoral senior lecturers, which limited the account
taken of previous periods of equivalent professional service completed by those lecturers in
another Member State constituted an obstacle to the free movement of workers under Article
45(1) TFEU, insofar as it is liable to render the exercise of that freedom less attractive. However,
Article 45 TFEU and Article 7(1) of Regulation No 492/2011 did not preclude such rules if the
service completed in that other Member State was not equivalent, but merely beneficial to the
performance of the duties of postdoctoral senior lecturer at the university. The Court recalled
that rewarding experience acquired which enables workers to improve the performance of their
duties constitutes a legitimate objective of pay policy, however, in the light of the specific
circumstances, the decision did not appear appropriate to ensure achievement of that objective.

employment, work and remuneration and gives workers who are
nationals of the other Member States and members of their
family access to the social and tax advantages from which
national workers benefit in the state of employment.
22. It follows from all its provisions and from the objective pursued
that the advantages which this Regulation extends to workers
who are nationals of other Member States are all those 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 the extension of
which to workers who are nationals of other Member States
therefore seems suitable to facilitate their mobility within the
community.
23. As it has previously been stated, the main reason for a benefit
such as that granted by the Belgian national legislation in
question to certain categories of national workers is the
services which those in receipt of the benefit have rendered
in wartime to their own country and its essential objective is
to give those nationals an advantage by reason of the hardships
suffered for that country.
24 Such a benefit, which is based on a scheme of national

recognition, cannot therefore be considered as an
advantage granted to a national worker by reason primarily
of his status of worker or resident on the national territory
if that reason does not fulfil the essential characteristics of the
“social advantages” referred to in Article 7(2) of Regulation
(EEC) no 1612/68. [Emphasis added.]
In Wurttembergische Milchverwertung Sudmilch AG v. Salvatore Ugliola [1970]

ECR 363 (Case 15/69), the CoJ held that a German law had created an
unjustifiable restriction by introducing indirect discrimination in favour of their
nationals alone, where military service was taken into account in calculating
length of service but only where military service was done in the Bundeswehr
irrespective of nationality, where this requirement would clearly be satisfied by
a far greater number of German nationals. In that case the CoJ held that there
had been a breach of Article 7(2) of Regulation 1612/68. Craig and de Búrca
suggest (at 777) in Ugliola “the [CoJ] seemed to treat the obligation to protect
a worker’s seniority and security of tenure as a condition of employment
imposed by the State on employers …”
In Generálny riaditeľ Sociálnej poisťovne Bratislava (C-447/18,

EU:C:2019:1098), the Court held that Article 7(2) of Regulation No 492/2011
precludes legislation of a Member State which makes receipt of an additional
benefit paid to certain high-level sportspeople who have represented that
Member State, or its legal predecessors, in international sporting competitions
conditional upon the person applying for the benefit having the nationality of
that Member State.
Article 7(3) of the Regulation affords educational rights to workers. Again this
provision is in identical terms in the original and recast Regulations.

Article 7(3)(d) of the Citizenship Directive provides that worker status is
retained if “he/she [the worker] embarks on vocational training. Unless he/she
is involuntarily unemployed, the retention of the status of worker shall require
the training to be related to the previous employment.” This provision confirms
the decisions of the CoJ interpreting Article 7(3) of Regulation 1612/68.
Craig and de Búrca state (at 780) that while “the interpretation of ‘social
advantages’ in Article 7 is broad, it is only workers and their families covered
by Directive 2004/38 EC (formerly by Article 10 of Regulation 1612/68 who may
avail of them.”
Article 12 of Regulation 1612/68 provided for educational rights for children of

workers. That provision is now found in Article 10 of Regulation 492/201147.
In Echternach and Moritz v. Netherlands Minister for Education and Science
[1989] ECR 723 (Cases 389 and 390/87), the CoJ held that Article 12 covered
the child’s right to educational assistance even where the working parent has
returned to his/her/their Member State of origin.
In Jobcenter Krefeld (C-181/19, EU:C:2020:794), the Grand Chamber of Court

clarified the rights enjoyed by a former migrant worker with dependent children
attending school in the host Member State, in the light of Regulations No
492/2011 and Directive 2004/38 EC.
The Court of Justice was tasked with examining whether the exclusion of EU
citizens having a right of residence under Article 10 of Regulation No 492/2011
from receipt of social assistance under Article 24(2) of Directive 2004/38/EC
was compatible with the requirement of equal treatment enshrined in Article 18
TFEU, read in conjunction with Articles 10 and 7 of Regulation No 492/2011.
The Court also explored whether “social assistance” under Article 24(2) of
Directive 2004/38 constitutes a social advantage under Article 7(2) of
Regulation No 492/2011 and whether the derogation set out in Article 24(2) of
Directive 2004/38 applies to the requirement of equal treatment enshrined in
Article 18 TFEU, read in conjunction with Articles 10 and 7 of Regulation
No 492/2011.
The applicant, JD, was a Polish national who had lived with his two minor
daughters in Germany since 2013 where they attended school. In 2015 and
2016, JD held various paid positions in that Member State before becoming
unemployed. From September 2016 to June 2017, the family received basic
social protection benefits under German law, i.e., “subsidiary unemployment
benefits” for JD and ‘social allowances’ for his children. In January 2018, JD
again secured full-time employment in Germany. JD applied to the competent
German authority, Jobcenter Krefeld, for continued payment of those benefits
for the period from June to December 2017. However, Jobcenter Krefeld
rejected his application on the basis that, during that period, JD had not retained
his status as worker and was residing in Germany as a jobseeker. JD brought
an action against that decision, which was upheld. Jobcenter Krefeld then
47Article 12(3) of the Citizenship Directive also provides, “the Union citizen's departure from the
host Member State or his/her death shall not entail loss of the right of residence of his/her
children or of the parent who has actual custody of the children, irrespective of nationality, if the
children reside in the host Member State and are enrolled at an educational establishment, for
the purpose of studying there, until the completion of their studies.”

brought an appeal before the Higher Social Court of North Rhine-Westphalia,
Germany, who made a reference to the CJEU.
Having found that the relevant social protection benefits could be classified as
a “social advantage” within the meaning of Regulation No 492/2011, the Grand
Chamber held that the regulation precludes national legislation which
automatically and, in all circumstances, bars a former migrant worker and
his/her children from receiving such benefits when they are entitled, under that
regulation, to an independent right of residence by virtue of those children
attending school:
35 It is clear from that case-law, first, that the child of a migrant worker
or of a former migrant worker has an independent right of residence in
the host Member State, on the basis of the right to equal treatment as
regards access to education, where that child wishes to attend general
education courses in that Member State. Second, recognition that that
child has an independent right of residence entails that the parent
who has primary care of that child should be recognised as having a
corresponding right of residence…
36 . . . a refusal to allow the parents caring for the children to

remain in the host Member State while those children are attending
school might deprive the children of a right granted to them by the
EU legislature …
37 Accordingly, Article 10 of Regulation No 492/2011 grants to a

child, in parallel with the right that child has to access to
education, an independent right of residence that does not depend
on the fact that the parent or parents who care for the child should
continue to have the status of migrant worker in the host Member
State. Likewise, the fact that the parent concerned loses that status
has no effect on his or her right of residence, under Article 10 of
Regulation No 492/2011, corresponding to that of the child of whom he
or she is the primary carer…
38 It should be added in that regard that Article 10 of Regulation

No 492/2011 should be applied independently of the provisions of
EU law, such as those of Directive 2004/38, that govern the
conditions for the exercise of a right of residence in another
Member State…
39 It follows that the children of a national of a Member State who

works or has worked in the host Member State, together with the
parent who is their primary carer, may rely, in the latter State, on
an independent right of residence on the sole basis of Article 10 of
Regulation No 492/2011, without their being required to satisfy the
conditions laid down by Directive 2004/38, including the condition
that the persons concerned have sufficient resources and
comprehensive sickness insurance cover in that State…
The Court then held that persons in possession of such a right of residence also
enjoy the right to equal treatment with nationals as regards the grant of social
advantages, provided for by Regulation No 492/2011, even where they can no

longer rely on the status of worker from which they derived their initial right of
residence:
45 . . . the scope of Article 7(2) of Regulation No 492/2011 includes

workers within the meaning of Article 45 TFEU, on the understanding
that, while the nationals of the Member States who move in order to seek
employment benefit from the principle of equal treatment only as regards
access to the employment market, those who have already entered
that employment market may, on the basis of Article 7(2), claim the
same social and tax advantages as national workers…
47 Consequently, the fact that JD had become economically inactive

during that period cannot lead to the result that the principle of
equal treatment laid down in Article 7(2) of Regulation No 492/2011
becomes inapplicable.
48 . . . the rights enjoyed by the worker who is a Union citizen and

his or her family members under Regulation No 492/2011 may, in
certain circumstances, persist even after the termination of the
employment relationship …
50 . . . in a situation where the children and the parent who is their

primary carer have a right of residence based on Article 10 of Regulation
No 492/2011, with respect to the right to equal treatment as regards
entitlement to the social advantages laid down in Article 7(2) of that
regulation…. the latter right, like the abovementioned ‘derived’ rights of
residence, originally has its source in the status of the parent concerned
as a worker and must be maintained after the loss of that status, for the
same reasons as justified the continuation of those rights of residence…
54 Accordingly, where a child has, in the host Member State, a right of

residence based on Article 10 of Regulation No 492/2011, that child is
entitled, on the same basis as the parent who is the primary carer of that
child, to the right to equal treatment laid down in Article 7(2) of that
regulation, even where that parent has lost his or her status as a worker.
On whether Article 24(2) of Directive 2004/38 is applicable to Union citizens

who have a right of residence based on Article 10 of Regulation No 492/2011:
69 . . . while it is true that persons, such as JD and his daughters, also

fall within the scope of Article 24 of Directive 2004/38, including the
derogation provided for in Article 24(2) thereof, on the ground that they
have a right of residence based on Article 14(4)(b) of that directive, the
fact remains that, since they can also rely on an independent right
of residence based on Article 10 of Regulation No 492/2011, that
derogation cannot be used against them...
71 . . . it would be paradoxical if Article 24(2)of Directive 2004/38 were

to be interpreted as meaning that it would be appropriate not to grant
entitlement to social assistance to persons who can claim not only a
right of residence as a parent, under Regulation No 492/2011, but also
a right of residence as a jobseeker, under Directive 2004/38. The
consequence of such an interpretation would be to exclude from the
benefit of equal treatment with nationals in the matter of social

assistance a parent and his or her children who have a right of
residence under Article 10 of Regulation No 492/2011, where that
parent decides to seek employment in the territory of the host Member
State.
As to whether there is a difference of treatment having regard to Article 7(2) of

Regulation No 492/2011 on social and tax advantages the Court held:
76 . . . the situation of a national of another Member State who has

previously entered the employment market of the host Member
State and who also has a right of residence based on Article 10 of
Regulation No 492/2011 must be distinguished from the situation
where there are indications that the former worker concerned has
abused his or her rights in a way not covered by the rules of EU
law, in that he or she has artificially created the conditions for
obtaining the social advantages at issue under Article 7(2) of
Regulation No 492/2011 …the documents available to the Court
contain nothing to suggest that there has been such an abuse of rights
or fraud of any sort in this case.
77 Accordingly, the fact that nationals of other Member States who are
economically inactive and who have an independent right of residence
under Article 10 of Regulation No 492/2011 are excluded from any
entitlement to the subsistence benefits at issue in the main proceedings
is contrary to Article 7(2) of Regulation No 492/2011, read together with
Article 10 of that regulation.
78 As regards . . . the first paragraph of Article 18 TFEU, in

accordance with settled case-law that provision is intended to
apply independently only to situations governed by EU law in
respect to which the FEU Treaty does not lay down specific rules
on non-discrimination (judgment of 11 June 2020, TÜV Rheinland
LGA Products and Allianz IARD, C-581/18, EU:C:2020:453,
paragraph 31 and the case-law cited). However, the principle of non-
discrimination has been given effect, in the area of freedom of
movement for workers, by Article 45 TFEU (judgment of 10 October
2019, Krah, C-703/17, EU:C:2019:850, paragraph 19 and the case-law
cited), which provision… finds particular expression, in the specific area
of the grant of social advantages, in Article 7(2) of Regulation
No 492/2011. Consequently, no interpretation of Article 18 TFEU is
needed.
Thus, in an importance clarification of the law on access to education and the

scope of social and tax advantages. The Court concluded that Article 7(2) and
Article 10 of Regulation No 492/2011 precludes Member State legislation
providing that a national of another Member State and his or her minor children
who have a right of residence based on Article 10 of that regulation by virtue of
attending school in that State are automatically and, in all circumstances,
excluded from entitlement to benefits to cover their subsistence costs. The
Court noted that this is not called into question by Article 24(2) of Directive
2004/38.

6. Definition of a Worker
the definition of ‘worker’ (and self-employed) was of paramount

importance before the introduction of [EU] citizenship since until then …
EU law conferred free movement rights only on economic migrants and
their families. Even after the introduction of [EU] citizenship, however,
the correct identification of the legal basis for the exercise of EU
rights is highly relevant …workers (and economically active
migrants in general) benefit of more extensive rights than non-
economically active Union migrants. In particular, economic
migrants have an unconditional right of residence (i.e. not dependent
on resources/insurance), as well as a right of access to most welfare
benefits of the host-Member State. [Emphasis added.]
The definition of a “worker” is an autonomous Community law concept;

Hoekstra v. Bestuur der Bedriffsvereniging voor Detailhandel en Ambachten
[1964] ECR 177 (Case 75/63). The term cannot be defined according to the
national laws of Member States as then the meaning would vary from Member
State to Member State.
If the definition of this term were a matter for the competence of national
law, it would therefore be possible for each Member State to modify the
meaning of the concept of “migrant worker” and to eliminate at will the
protection afforded by the Treaty to certain categories of person….
[Article 45…] would therefore be deprived of all effect and the

…objectives of the Treaty would be frustrated if the meaning of such a
term could be unilaterally fixed and modified by national law.
The CoJ has interpreted the term “worker” broadly. We shall see that for the
definition of worker the CoJ requires that there is remuneration, that the work
is carried out under direction/ subordination (to distinguish from self-
employment) and that the work is genuine and effective. (See Lawrie- Blum
v. Land Baden Wurtettemberg [1986] ECR 2121 (Case 66/85), discussed
below.)
In Levin v. Staatssecretaris van Justitie [1982] ECR 1035 (Case 53/81), the
CoJ emphasised the broad interpretation of the right and held that the freedom
applied to part-time workers. Levin was a British citizen married to a third
country national and residing in the Netherlands. She worked some hours as
a chamber-maid.
The CoJ stated (at [13] that the term “worker” could not be interpreted
restrictively. It held (at [17]):
It should however be stated that whilst part-time employment is not

excluded from the field of application of the rules on freedom of
movement for workers, those rules cover only the pursuit of effective
and genuine activities, to the exclusion of activities on such a small
scale as to be regarded as purely marginal and ancillary. It follows both
from the statement of the principle of freedom of movement for workers
48 6th ed.

and from the place occupied by the rules relating to that principle in the
system of the Treaty as a whole that those rules guarantee only the free
movement of persons who pursue or are desirous of pursuing genuine
economic activity. [Emphasis added.]
Earlier in the judgment the CoJ stated that the effectiveness of Community law
would be impaired if those in part-time employment, which provided
opportunities for many to improve their economic situation, would be impaired.
In Kempf v. Staatssecretaris van Justitie [1986] ECR 1741 (Case 139/85), a

German music teacher residing in the Netherlands gave twelve piano lessons
a week and relied to supplement his income on welfare payments from the
Member State where he resided. He was refused a residence permit. The
Dutch government argued that this activity could not be genuine and effective
work if it meant the person was below subsistence level and relied on public
funds to supplement his income. The CoJ held that where a genuine part-time
worker sought to supplement his income it was irrelevant where the
supplementary income was derived.
Walrave and Koch v. Association Union Cycliste Internationale [1974] ECR

1405 (Case 36/74) and in Union Royale Belge des Sociétés de Football
Association v. Bosman [1995] ECR I-4921 (Case C-415/93), the CoJ held that
the practice of sport falls within Community law in so far as it constitutes an
economic activity although the CoJ has accepted that the composition of
national teams could be a question of sporting and not of economic interest.49
In Lawrie-Blum v. Land Baden Wurtettemberg [1986] ECR 2121 (Case 66/85)
the CoJ considered German rules restricting access of non-nationals to the
preparatory service stage necessary for qualifications as a teacher. Ms Lawrie-
Blum was British national who had passed University exams in Germany for
admission as a secondary school teacher. She was refused admittance on
grounds of nationality, by the Secondary Education Office in Stuttgart, to a
period of preparatory service which leads to a State exam which qualifies
successful candidates as teachers in secondary schools in Germany.
The CoJ considered a trainee teacher was a worker. The CoJ provided the
following definition:
The concept must be defined in accordance with objective criteria which

distinguish the employment relationship by reference to the rights and
duties of the persons concerned. The essential feature of an
employment relationship, however is that for a certain period of time
a person performs services for and under the direction of another
person in return for which he receives remuneration. [Emphasis
added.]
49 Note in TopFit and Biffi (C-22/18, EU:C:2019:497), in a dispute between an amateur Italian
and the German national athletics association concerning the conditions for the participation of
nationals of other Member States in German amateur sports championships the CJEU held
that a citizen of the Union, such as the amateur athlete, who has made use of his or her right
to move freely, can legitimately rely on Articles 18 and 21 TFEU in connection with his or her
practice of a competitive amateur sport in the host Member State and the rules of a national
sports association which govern the access of EU citizens to sports competitions are subject to
the rules of the Treaty, in particular Articles 18 and 21 TFEU.

In Steymann v. Staatssecretaris van Justitie [1988] ECR 6159 (Case 196/87),
a German national had worked as a plumber in the Netherlands for a short time.
Thereafter he joined the Bhagwan Community where he participated by
performing plumbing work and other duties. The Bhagwan Community
provided for the material needs and pocket-money of its members. He was
refused a residence permit. The CoJ held:
in so far as the work, which aims to ensure a measure of self-sufficiency

for the Bhagwan Community, constitutes an essential part of
participation in that Community, the services which [a member of the
Community] provides to its members may be regarded as an indirect
quid pro quo for their work.
Payir v. Secretary of State for the Home Department [2008] ECR I 203 (Case
294/06) concerned an au pair and students who worked part-time as waiters
and up to twenty hours per week. They were Turkish nationals resident in the
UK and sought to rely on the Association Agreement between the EU and
Turkey. The CoJ considered that the au-pair and the students who worked
part-time were workers as their activities were not marginal and ancillary.
Thus they were able to rely on the Association Agreement for the purposes of
obtaining renewed permissions to work and a corollary right of residence.
Finally, J M Raulin v. Minister van Onderwijs en Wetenschappen [1992] ECR

I-01027 (Case C-357/89) concerned a French national who settled in the
Netherlands without registering or applying for a residence permit and who,
over a period of eight months held a contract of employment known as an
"oproepcontract" ("on-call contract") under which she worked for 60 hours as a
waitress.
The Court held that a worker employed under an on-call contract is not
precluded by reason of his conditions of employment from being regarded as a
worker within the meaning of [Article 45 TFEU]; and that the duration of the
activities pursued by the person concerned is a factor which may be taken into
account by the national courts when assessing whether those activities are
effective and genuine or whether, on the contrary, they are on such a small
scale as to be purely marginal and ancillary.
6.1 Purpose of the Work
In general, the CoJ has stated that the purpose of the work is irrelevant in
determining whether an individual is a worker. If the activity is genuine and not
marginal the person engaged in the activity will benefit from the protection of
Article 45 TFEU. In Levin v. Staatssecretaris van Justitie [1982] ECR 1035
(Case 53/81), an issue arose as to whether the motivation Ms Levin’s
employment was relevant. The suggestion was that she worked as a
chambermaid in order to acquire a derivative right for her third country national
husband, where she and her husband were of independent means. The CoJ
stated:
23. The answer to be given to the third question put to the court by
the Raad van State must therefore be that the motives which
may have prompted a worker of a member state to seek
employment in another member state are of no account as
regards his right to enter and reside in the territory of the latter

state provided that he there pursues or wishes to pursue an
effective and genuine activity
In several cases, however, the CoJ has taken the purpose of the work into
account.
In Bettray v. Staatssecretaris van Justitie [1989] ECR 1621 (Case 344/87), the
CoJ considered a drug rehabilitation programme and held that an activity could
not be regarded as an effective and genuine economic activity if it merely
constituted a means of rehabilitation or reintegration for the persons concerned
and the purpose of the paid employment, which was adapted to the physical
and mental possibilities of each person was to enable such persons to recover
their capacity to take up normal employment.
In Trojani v CPAS [2004] ECR 7375 (Case C-465/02), the CoJ distinguished
Bettray. Trojani concerned a French national in Belgium who was given
accommodation in a Salvation Army hostel where he performed some jobs,
approximately 30 hours a week, in return for lodgings and pocket money, as
part of a socio-occupational reintegration programme. After two years he
sought social assistance, on the basis that he was a worker. The CoJ stated
that Trojani could claim a right of residence as a worker only if the paid activity
carried out was real and genuine but that it was for the national court to make
that determination.
Craig and de Búrca50 state (at 754), that although the CoJ “left it ultimately to
the national court to decide whether his employment was real and genuine, it
made clear that the fact that social reintegration was the main purpose of the
employment would not disqualify the employment from being considered as
such.”
In Brown v. Secretary of State for Scotland [1988] ECR 3205 (Case 197/86),
the CoJ considered the case of a dual national (relying on his French
nationality) who had worked for a company in Scotland as a form of pre-
university training and sought to rely on his status as a worker to benefit from
a maintenance grant. The CoJ accepted that he was a worker but held because
of the ancillary purpose of his employment (pre-University training) he was not
entitled to all of the social advantages available to a worker. Thus he was not
entitled to a maintenance grant. Craig and de Búrca51 state (at 755):
Brown remains an authority for the proposition that an EU national who

undertakes work for a temporary period purely as a means to qualify for
an educational course will not be entitled to all of the same social
advantages and rights as a fully-fledged ‘worker’ under EU law.”
6.2 Retention of Worker Status
It is possible for a worker to retain the status of worker when s/he is unable to
work as result of illness/ accident, being involuntarily unemployed (the amount
of time worked is relevant in respect of the latter).
In Lair v. Universitat Hannover [1988] ECR 3161 (Case 39/86) the CoJ relied
on secondary legislation providing rights for migrant workers who are no longer
50 6th ed.
51 Ibid.

economically active because of illness, retirement or involuntary
unemployment. The CoJ stated that migrant workers were guaranteed certain
rights linked to the status of worker even when they are no longer in an
employment relationship.
Article 7(3) of the Citizenship Directive sets out the situations under which
worker status is retained and provides:
For the purposes of paragraph 1(a), a Union citizen who is no longer a

worker or self-employed person shall retain the status of worker or self-
employed person in the following circumstances:
employment office;
Wyatt and Dashwood state (at 678), “the possibility to retain economically
active status is important because it means that the Union citizen can continue
to reside in the host Member State without having to satisfy any other conditions
and that she/he is entitled to social welfare provision.”
Article 7(3)(b) and (c) refer to involuntary unemployment. Craig and de Búrca52
point out (at 774), “the Directive does not otherwise deal with voluntary
unemployment, and so the assumption may reasonably be made that persons
will not retain the status of worker if they become voluntarily unemployed unless
they are pursuing related vocational training.”
Forde53 considers (at 311) that while an individual might lose favoured worker
status after six months54 that it is doubtful whether the host Member State could
deport the individual unless there were serious grounds for deportation other
than involuntary unemployment.
In Collins v. Secretary of State for Work and Pensions [2004] ECR I 2703 (Case
C-138/02) the CoJ indicated that there will be a cut-off time after which the link
with the status of worker will not continue. In that case the fact that an individual
had been a worker seventeen years previously was not sufficient to now claim
the benefits of a worker.
52 6th ed.
53 Page 311.
54 The six-month period is not specified in the Directive but is suggested in the case-law, e.g.,
R v. Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I 745 (Case C-292/ 89).

Saint-Prix v. Secretary of State for Work and Pensions [2014] ECR I nyr,
decision of 19 June 2014 (Case C-507/12) concerned a French national in the
UK who gave up work during her pregnancy on the basis that the demands of
the specific job were too much during pregnancy. The CoJ stated that Article
7(3) of the Citizenship Directive did not expressly envisage the case of a
woman who was no longer a worker or a self-employed person because of the
physical constraints of the late stages of her pregnancy and the aftermath of
childbirth.
The CoJ referred to another line of case-law in which it has consistently

determined that pregnancy must be distinguished from illness; Webb v. EMO
Air Cargo (UK) Ltd. [1994] I ECR 300 (C-32/93). Ms Saint-Prix could not
therefore be regarded as a person who had temporarily given up work as a
result of illness within the meaning of Article 7(3) of the Citizenship Directive.
The CoJ determined that this did not however deprive her of the status of
worker within the meaning of Article 45 TFEU. Article 7(3) of the Citizenship
Directive did not list exhaustively the circumstances in which a migrant worker
who is no longer in an employment relationship may nevertheless continue to
benefit from that status. The CoJ referred to the EU law guarantee of the
special protection of women in connection with maternity. The CoJ also
referred to Article 16(3) of the Citizenship Directive which permits, for the
purpose of calculating the continuous period of five years of residence in the
host Member State necessary for EU citizens to acquire the right of permanent
residence in that territory, that the continuity of that residence is not affected,
inter alia, by an absence of a maximum of 12 consecutive months for important
reasons such as pregnancy and childbirth. The CoJ stated:
46. If, by virtue of [the protection in Article 16(3) of the Citizenship

Directive], an absence for an important event such as pregnancy or
childbirth does not affect the continuity of the five years of residence in
the host Member State required for the granting of that right of
residence, the physical constraints of the late stages of pregnancy and
the immediate aftermath of childbirth, which require a woman to give up
work temporarily, cannot, a fortiori, result in that woman losing her
status as a worker.
The CoJ therefore determined that Article 45 TFEU must be interpreted as

meaning that a woman who gives up work, or seeking work, because of the
physical constraints of the late stages of pregnancy and the aftermath of
childbirth retains the status of “worker”, within the meaning of that article,
provided she returns to work or finds another job within a reasonable period
after the birth of her child.
6.3 Job-seekers
In R v. Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I 745

(Case C-292/ 89) the CoJ confirmed that job-seekers have rights pursuant to
Article 45 TFEU but do not have the full status of a “worker”. The restrictions
were designed to prevent welfare tourism.
Social and tax advantages guaranteed to workers were not available to job-
seekers: Lebon [1987] ECR 281 (Case 316/85). Job-seekers only benefited
from the provisions of Regulation 1612/68 concerning access to employment:

Collins v. Secretary of State for Work and Pensions [2004] ECR I 2703 (Case
C-138/02).
Recital 9 of the Citizenship Directive provides:
Union citizens should have the right of residence in the host Member
State for a period not exceeding three months without being subject to
any conditions or formalities other than the requirement to hold a valid
identity card or passport, without prejudice to a more favourable
treatment applicable to job-seekers as recognised by the case-law of
the Court of Justice. [Emphasis added.]
Job-seekers enjoy a right of residence in another Member State while they are
seeking work. In R v. Immigration Appeal Tribunal, ex parte Antonissen [1991]
ECR I 745 (Case C-292/89) the CoJ considered that a six-month period allowed
by the UK, seemed reasonable but that the right to remain in search of work
must continue after that period where the jobseeker “provides evidence that he
is continuing to seek employment and that he has genuine chances of being
engaged.” The case involved a Belgian national who was convicted in the UK
of possession of cocaine. The Tribunal took the view that seeing as he had
been in the UK for more than six months and he had not found work he could
no longer be treated as a worker. The six-month period was laid down in UK
legislation. The CoJ stated (at [22]):
22 It must therefore be stated in reply to the questions submitted

by the national court that it is not contrary to the provisions of
[EU] law governing the free movement of workers for the
legislation of a Member State to provide that a national of
another Member State who entered the first State in order to
seek employment may be required to leave the territory of that
State (subject to appeal) if he has not found employment there
after six months, unless the person concerned provides
evidence that he is continuing to seek employment and that he
has genuine chances of being engaged.
The rights of job-seekers have benefited from the development of citizenship

rights.
Thus in D’Hoop v. Office Nationale de L’Emploi [2002] ECR I 6191 (Case C-

224/98), the CoJ held that a Belgian national refused a “tide-over” allowance
when seeking her first job in Belgium on the basis that her secondary diploma
was obtained in France had suffered discrimination on the basis of her EU
citizenship.
In Collins v. Secretary of State for Work and Pensions [2004] ECR I 2703 (Case
C-138/02), another case after the introduction of citizenship rights the CoJ
reconsidered its case-law such as Lebon and ruled that the rights of jobseekers
should now be interpreted in the light of the general right of EU citizens to equal
treatment. Mr Collins was an Irish citizen who claimed benefits while seeking
work in the UK. He was refused benefits as he was not habitually resident in
the UK. In reinterpreting its earlier case-law the CoJ determined that job-
seekers are now entitled to equal treatment in the host State with regard to job-
seekers’ allowance.

63. In view of the establishment of citizenship of the Union and the
interpretation in the case-law of the right to equal treatment
enjoyed by citizens of the Union, it is no longer possible to
exclude from the scope of Article [45(2) TFEU] of the Treaty –
which expresses the fundamental principle of equal treatment,
guaranteed by Article [18 TFEU] of the Treaty – a benefit of a
financial nature intended to facilitate access to employment in
the labour market of a Member State. [Emphasis added.]
It is open to the Member States to argue that indirect discrimination is justified

to ensure that there is a genuine link between the migrant and the labour
market.
68. The jobseeker’s allowance introduced by the 1995 Act is a social

security benefit which replaced unemployment benefit and
income support, and requires in particular the claimant to be
available for and actively seeking employment and not to have
income exceeding the applicable amount or capital exceeding a
specified amount.
69. It may be regarded as legitimate for a Member State to grant

such an allowance only after it has been possible to establish
that a genuine link exists between the person seeking work and
the employment market of that State.
70. The existence of such a link may be determined, in particular,

by establishing that the person concerned has, for a reasonable
period, in fact genuinely sought work in the Member State in
question.
71. The United Kingdom is thus able to require a connection

between persons who claim entitlement to such an allowance
and its employment market.
72. However, while a residence requirement is, in principle,
appropriate for the purpose of ensuring such a connection, if it
is to be proportionate it cannot go beyond what is necessary in
order to attain that objective. More specifically, its application by
the national authorities must rest on clear criteria known in
advance and provision must be made for the possibility of a
means of redress of a judicial nature. In any event, if compliance
with the requirement demands a period of residence, the period
must not exceed what is necessary in order for the national
authorities to be able to satisfy themselves that the person
concerned is genuinely seeking work in the employment market
of the host Member State.
Ioannidis [2005] ECR I 8275 (Case C-258/04) involved a Greek citizen who
was seeking work in Belgium. He had been schooled in Greece. A “tide-over”
allowance was available to persons who had completed secondary school in
Belgium. The CoJ considered the Belgian law which restricted access to the
“tide-over” allowance to those who had concluded their secondary schooling in
Belgium to be disproportionate.
30. As the Court has already held, it is legitimate for the national
legislature to wish to ensure that there is a real link between the

applicant for that allowance and the geographic employment
market concerned.
31. However, a single condition concerning the place where the
diploma of completion of secondary education was obtained is
too general and exclusive in nature. It unduly favours an
element which is not necessarily representative of the real and
effective degree of connection between the applicant for the
tideover allowance and the geographic employment market, to
the exclusion of all other representative elements. It therefore
goes beyond what is necessary to attain the objective pursued.
Article 24(2) the Citizenship Directive excludes job-seekers from the right to
equal treatment in relation to social assistance.
Craig and de Búrca state that from Collins and D’Hoop it is clear that job-
seekers are entitled to equal treatment to social assistance to facilitate job-
seeking, but that Article 24(2) governs social assistance more generally.
In Vatsouras v. Arbeitsgemeinschaft (ARGE) Nurnberg 900 [2009] ECR I 4585

(Joined Cases C-22/08 and 23/08), the CoJ held:
45. Benefits of a financial nature, which independently of their status

under national law, are intended to facilitate access to the labour market
cannot be regarded as constituting “social assistance” within the
meaning of Article 24(2) of Directive 38/2004.
A person who does not have sufficient resources and is neither economically
active or a job-seeker may be excluded from social assistance: Dano v.
Jobcentre Leipzig [2014] ECR I nyr, decision of 11 November 2014 (Case C-
333/13).55
Finally, Tarola C-483/17; ECLI:EU:C:2019:309 concerned a reference for a

preliminary ruling from the Irish Court of Appeal in the context of judicial review
proceedings regarding a Romanian national refused the right to jobseeker’s
allowance. The Court of Appeal referred the following question to the CJEU:
‘Where a citizen of another EU Member State, after his first 12 months

of exercising his right of free movement, arrives in the host [Member]
State and works (otherwise than [on] a fixed-term contract) for a two-
week period for which he is remunerated and thereafter becomes
involuntarily unemployed, does that citizen thereby retain the status of
a worker for no less than a further six months for the purposes of
Article 7(3)(c) and Article 7(1)(a) of Directive [2004/38] such as would
entitle him to receive social assistance payments or, as the case may
be, social security benefits on the same basis as if he were a resident
citizen of the host State?’
As regards Article 7(3) of the Directive, the Court held:
45 … a Union citizen who has pursued an activity in an employed or

self-employed capacity in the host Member State for a period of less
than one year retains his status of worker only for a period of time which
55 Discussed in chapter 14 of the Manual.

that Member State may determine, provided it is no less than six
months.
46 The host Member State may in fact limit the period during which
a Union citizen who has pursued an activity as an employed or self-
employed person in that State retains the status of worker, although that
period may not be less than six months, in accordance with Article
7(3)(c) of Directive 2004/38, when that citizen is unemployed for
reasons beyond his control before having been able to complete one
year of activity…
49 Such an interpretation is consistent with the principal objective

pursued by Directive 2004/38, which is, as has been recalled in
paragraph 23 of the present judgment, to strengthen the right of free
movement and residence of all Union citizens, and with the objective
specifically pursued by Article 7(3) thereof, which is to safeguard, by the
retention of the status of worker, the right of residence of persons who
have ceased their occupational activity because of an absence of work
due to circumstances beyond their control (see, to that effect,
judgments of 15 September 2015, Alimanovic, C‑67/14,
EU:C:2015:597, paragraph 60; of 25 February 2016, García-Nieto and
Others, C‑299/14, EU:C:2016:114, paragraph 47; and of 20 December
2017, Gusa, C‑442/16, EU:C:2017:1004, paragraph 42).
50 That interpretation cannot, moreover, be considered to

undermine the achievement of one of the other objectives pursued
by Directive 2004/38, namely the objective of striking a fair balance
between safeguarding the free movement of workers, on the one
hand, and ensuring that the social security systems of the host
Member State are not placed under an unreasonable burden, on
the other.
52 … the retention of the status of worker pursuant to Article 7(3)(c)

of Directive 2004/38 presupposes … first, that the citizen concerned,
before his period of involuntary unemployment, did actually have the
status of worker within the meaning of that directive and, second, that
he has registered as a jobseeker with the relevant employment office.
In addition, the retention of that status during a period of involuntary
unemployment may be limited to six months by the Member State
concerned.
53 Lastly, an examination of the travaux préparatoires of Directive

2004/38, in particular the amended proposal for a Directive of the
European Parliament and of the Council on the right of citizens of the
Union and their family members to move and reside freely within the
territory of the Member States (COM(2003) 199 final), and the Council
Common Position (EC) No 6/2004 of 5 December 2003 (OJ 2004 C 54
E, p. 12), confirms, as the Advocate General has stated in points
51 and 52 of his Opinion, the intention of the EU legislature to
extend the benefit of retention of the status of worker, limited, as
the case may be, to six months, to persons in involuntary
unemployment after having worked for less than a year otherwise
than under a fixed-term employment contract.

54 It follows that Article 7(1) and (3)(c) of Directive 2004/38 must be
interpreted as meaning that a Union citizen, in a situation such as that
of the appellant in the main proceedings, who acquired the status of
worker within the meaning of Article 7(1)(a) of that directive in a Member
State, on account of the activity he pursued there for a period of two
weeks before becoming involuntarily unemployed, retains his status
of worker for a period of no less than six months, provided that he
has registered as a jobseeker with the relevant employment office.
55 It should also be borne in mind that, as stated in recital 20 and

Article 24(1) of Directive 2004/38, all Union citizens residing on the
basis of that directive in the territory of the host Member State, including
those retaining their status of worker or self-employed person under
Article 7(3)(c) of that directive, enjoy equal treatment with the
nationals of that Member State within the scope of the FEU Treaty,
subject to such specific provisions as are expressly provided for in the
Treaty and secondary law.
56 It follows that, as the Advocate General has stated in point 55 of

his Opinion, where national law excludes persons who have worked in
an employed or self-employed capacity only for a short period of time
from the entitlement to social benefits, that exclusion applies in the
same way to workers from other Member States who have exercised
their right of free movement.
57 It is, therefore, for the referring court, which alone has

jurisdiction to interpret and apply national law, to determine
whether, under that law and in accordance with the principle of
equal treatment, the appellant in the main proceedings is entitled
to the social security benefits or social assistance payments that
he claims in the case in the main proceedings.
58 It follows from the foregoing that Article 7(1)(a) and (3)(c) of

Directive 2004/38 must be interpreted as meaning that a national of a
Member State who, having exercised his right to free movement,
acquired, in another Member State, the status of worker within the
meaning of Article 7(1)(a) of that directive, on account of the activity he
pursued there for a period of two weeks, otherwise than under a fixed-
term employment contract, before becoming involuntarily unemployed,
retains the status of worker for a further period of no less than six
months under those provisions, provided that he has registered
as a jobseeker with the relevant employment office. It is for the
referring court to determine whether, in accordance with the principle of
equal treatment guaranteed in Article 24(1) of Directive 2004/38, that
national is, as a result, entitled to receive social assistance payments
or, as the case may be, social security benefits on the same basis as if
he were a national of the host Member State.

7. Direct and Indirect Discrimination
Article 45 TFEU prohibits both direct and indirect discrimination. Article 45(2)
TFEU entails the abolition of discrimination on the grounds of nationality as
regards employment, remuneration and conditions of work.56
Wyatt and Dashwood explain (at 719) the distinction as follows:
Direct discrimination occurs when the national and non-national are

treated differently in law … such discrimination can only be justified on
one of the grounds listed in [Articles 45(3) and (4) TFEU]. Indirect
discrimination occurs when an apparently neutral rule affects non-
nationals more heavily than nationals… Indirect discrimination can be
justified by imperative requirements of the public interest. A rule can be
justified by an imperative requirement when it pursues an aim
compatible with [EU] law (an interest worthy of protection); and when
the restriction it imposes on the enjoyment of the [EU] right is necessary
to achieve that aim, as well as proportionate.
In Commission v. Italy ECR I 4923 (Case C-212/99), the CoJ held that Italy was
in breach of its Treaty obligations where Universities failed to recognize the
acquired rights of foreign language assistants.
An example of indirect discrimination is a residence requirement.
In Wurttembergische Milchverwertung Sudmilch AG v. Salvatore Ugliola [1970]

ECR 363 (Case 15/69), the CoJ held that a German law had created an
unjustifiable restriction by introducing indirect discrimination in favour of their
nationals alone, where military service was taken into account in calculating
length of service but only where military service was done in the Bundeswehr
irrespective of nationality, where this requirement would clearly be satisfied by
a far greater number of German nationals.
Indirect discrimination may arise from the imposition of language requirements

for certain jobs. This requirement may be legitimate and Regulation 1612
allows for an exception relating to linguistic requirements required by reason of
the nature of the position to be filled. In Groener v. Minister for Education [1989]
ECR 3967 (Case 379/87), the CoJ considered the situation of a Dutch national
refused as post of art teacher as she failed an oral Irish examination. The CoJ
considered the Irish Government policy of maintaining and promoting the Irish
language and considered that this could be a justification for the Irish language
requirement for teachers provided the rule was not imposed disproportionately.
National rules which fail to recognize qualifications of workers obtained in the
worker’s home state have also been found contrary to Article 45 TFEU;
Commission v. Portugal [2004] ECR I 5645.
56 Note there are limits to this provision. In the recent case of Erzberger, Case C-566/15
ECLI:EU:C:2017:562, the Grand Chamber examined whether legislation on employee
participation which restricted the right to vote and stand for election to those employees located
on the national territory, thereby excluding employees who left their employment in an
establishment in Germany to take up employment with a subsidiary belonging to the same
group located in another Member State, deprived them of their rights under Article 45(2) TFEU.
The Court held that EU primary law could not guarantee a worker that moving to another
Member State other than his/her Member State of origin will be netural in social terms and EU
law does not prevent a Member State from providing that the legislation it has adopted is
applicable only to workers employed by establishments located in its national territory.

In John O’Flynn v. Adjudication Officer [1996] ECR I 2617 (Case 237/94), an
Irish national, working in the UK applied for a grant to cover his son’s funeral
expenses. The funeral was to take place in Ireland and the UK authorities
refused the grant. It was argued that the refusal was inconsistent with
Regulation 1612/68 on the basis that the grant was a social advantage which
could not be made conditional upon directly or indirectly discriminatory criteria.
The CoJ stated
…conditions imposed by national law must be regarded as indirectly

discriminatory where, although applicable irrespective of nationality,
they affect essentially migrant workers … or the great majority of those
affected are migrant workers … where they are indistinctly applicable
but can more easily be satisfied by national workers than by migrant
workers … or there is a risk that they may operate to the particular
detriment of migrant workers …
The CoJ held that the rule was indirectly discriminatory as it was more likely
that non-nationals would wish to have their relative buried outside the UK.
In Commission v. Greece [2011] ECR I 65 (Case C-155/09) the CoJ determined

that Greece’s property tax regime which granted exemptions from a specific tax
to persons permanently resident in Greece was in breach inter alia of the free
movement of workers provision, now found in Article 45 TFEU.57 Greece had
argued that there was no requirement of Greek nationality. The CoJ stated at
paragraphs 45-48:
45. On that point it is sufficient to recall that the Court has consistently
held that the rules regarding equal treatment forbid not only overt
discrimination by reason of nationality but also all covert forms of
discrimination which, by the application of other criteria of
differentiation, lead in fact to the same result (see, inter alia, Case
152/73 Sotgiu [1974] ECR 153, paragraph 11; Commerzbank,
paragraph 14, and Case C-103/08 Gottwald [2009] ECR I-9117,
paragraph 27).
46. That is true, in particular, of a measure under which a distinction is

drawn on the basis of residence or ordinary residence, inasmuch as that
requirement is liable to operate mainly to the detriment of nationals of
other Member States, since persons who are not resident or ordinarily
resident on the national territory are in the majority of cases foreigners
(see, inter alia, Case C-224/97 Ciola [1999] ECR I-2517, paragraph 14;
Case C-388/01 Commission v Italy [2003] ECR I-721, paragraph 14,
and Gottwald, paragraph 28).
47. In the present case, Article 1(3), first subparagraph, of Law

1078/1980 is based precisely on that type of requirement, given that the
provision reserves entitlement to the tax exemption solely to permanent
residents in Greece. In that regard, it should be observed that, although
it applies irrespective of the nationality of the purchaser of immovable
property, the requirement that a person be resident in Greece in order
to be eligible for the tax exemption is liable to operate particularly to the
57 At that time Article 39 EC. The CoJ also found Greece to be in breach of Article 21 TFEU
(the Citizenship provision) and Article 49 TFEU (the Freedom of Establishment provision).

detriment of persons who are not Greek nationals – the reason being
that in most cases those are the persons whose residence will be
outside Greece.
48. The provision concerned therefore places at a disadvantage

persons not residing in Greece who purchase a first home with a view
to settling in Greece in the future, since it does not admit that such
persons are entitled to the exemption from the tax due on the purchase
of a first home, whereas persons already residing in Greece who
purchase a first home there may benefit from the exemption.
8. Obstacles to Access to Employment

The CoJ has held that non-discriminatory (on the grounds of nationality)
provisions which restrict free movement of workers may breach Article 45
TFEU if they constitute an excessive obstacle to free movement of workers.
Wyatt and Dashwood state that Article 45 TFEU prohibits all obstacles to
freedom of movement, whether discriminatory or not, which impede the entry
and residence of a migrant worker in a Member State and the conditions of
access to employment in that State, but that national rules which affect the
migrant worker in the pursuit and exercise of activities as an employed person,
and in the enjoyment of all the social, health and tax advantages normally
available for residents are consistent with the latter Article if they do not
discriminate either in law or in fact on the grounds of nationality.” The CoJ has
determined that rules which are not discriminatory may breach the free
movement of worker’s provision if they amount to an excessive obstacle to
freedom of movement.
In Union Royale Belge des Sociétés de Football Association v. Bosman [1995]

ECR I-4921 (Case C-415/93), the CoJ held that the football transfer system
was in breach of Article 45 TFEU. The system required payment of a sum by a
prospective acquiring team to a footballer’s former club when his contract with
the former club ended. Bosman’s club held his card entitling him to play as a
footballer. It sought to transfer him to a new club. The transfer was not
completed as the transfer fee was not paid by the acquiring club. Bosman’s
club would neither allow him to play nor release him and he was, therefore,
therefore prevented from working.
Bosman had been employed by a Belgian club and the transfer system
operated to prevent him from taking up a position with a French club. The rules
applied equally to transfers within one Member State. The CoJ considered that
the rules of the sporting associations which governed transfers constituted an
obstacle to the free movement of workers. The CoJ rejected the argument that
rule was comparable to a selling arrangement within the meaning of the Keck
and Mithouard (in the context of free movement of goods) stating:
103 It is sufficient to note that, although the rules in issue in the main
proceedings apply also to transfers between clubs belonging to different
national associations within the same Member State and are similar to
those governing transfers between clubs belonging to the same national
association, they still directly affect players'access to the employment
market in other Member States and are thus capable of impeding

freedom of movement for workers. They cannot, thus, be deemed
comparable to the rules on selling arrangements for goods which in
Keck and Mithouard were held to fall outside the ambit of Article 30 [34
TFEU](see also, with regard to freedom to provide services, Case C-
384/93 Alpine Investments v Minister van Financiën [1995] ECR I-1141,
paragraphs 36 to 38).
104. Consequently, the transfer rules constitute an obstacle to freedom

of movement for workers prohibited in principle by Article [45 TFEU]. It
could only be otherwise if those rules pursued a legitimate aim
compatible with the Treaty and were justified by pressing reasons of
public interest. But even if that were so, application of those rules would
still have to be such as to ensure achievement of the aim in question
and not go beyond what is necessary for that purpose.
The rule was capable of impeding free movement of workers irrespective of the
fact that there was no discrimination on the grounds of nationality. The rule was
caught by Article 45 TFEU and in the absence of a public interest justification
was contrary to Article 45 TFEU. The existence of an obstacle to free
movement of workers from one Member State to another was sufficient to bring
the rule within the ambit of Article 45 TFEU. The Bosman ruling has been
confirmed by the CoJ on many occasions. As Chalmers58 notes (at 862), the
reasoning in Bosman is reflective of the decision in Cassis de Dijon in that
“equally applicable restrictions on employment” are caught.
In Volker Graf v. Filmoser Maschinenbau GmbH [2000] ECR I 493 (Case C-

190/98), the CoJ considered an argument whether a rule which provided that
compensation on termination of employment did not apply where the worker
voluntarily ended the employment to take up another job was contrary to Article
45 TFEU. The applicant sought to rely on Bosman ruling, arguing that the
prospect of losing the right to be compensated discouraged him from exercising
his free movement right. The CoJ held that this rule did not constitute an
obstacle market access and was not in breach of Article 45 TFEU.
Thus, not all non-discriminatory rules are obstacles to the free movement of
workers.
8.1 Objective Justification
Craig and de Búrca emphasise (at 763), “[t]he possible grounds for justifying
indirect discrimination are broad and not confined to the exceptions set out in
the Treaty or secondary legislation.”
In Olympique Lyonnais SASP v. Oliver Bernard and Newcastle UFC [2010] I

2177 (Case C-325/08) the CoJ considered a rule whereby young footballers
who were trained by a club would have to pay damages if they signed a contract
with a club other than the club which had trained them. The CoJ held that the
rule fell within the ambit of Article 45 TFEU and considered whether the rule
was objectively justifiable. The CoJ considered that, in principle, such a scheme
might be justified but that in circumstances where the damage was calculated
in a way which was unrelated to the cost of training, the damages were not
necessary to ensure the attainment of the objective of encouraging the
recruitment and training of young players.
58 3rd ed.

8.2 Internal Situations
Article 45 TFEU does not apply to wholly internal situations. In R v. Saunders

[1979] ECR 1129 (Case 175/78), involved criminal allegations of theft were the
accused had agreed to travel to Northern Ireland and not to return to England
or Wales within three years. The CoJ held:
The application by an authority or court of a Member State to a worker

who is a national of that same State of measures which deprive or
restrict the freedom of movement of the person concerned within the
territory of that state as a penal measure provided for by national law
by reason of acts committed within the territory of that State is a wholly
domestic situation which falls outside the scope of the rules contained
in the EEC Treaty on freedom of movement for workers.
A cross-border element arises when a worker returns to his/her State of origin

after having exercised his Article 45 TFEU rights by working in another Member
State. Thereafter, on return to his home Member State, a worker can rely on
Article 45 TFEU against his or her own Member State: FC Terhoeve v.
Inspecteur van de Belastingdienstd Particulieren [1999] ECR I 345 (Case C-
18/95).
Wyatt and Dashwood note in the context of family members that “family
members of Union citizens who have moved to another Member State to then
come back to their State of origin are protected in the same way as if they were
family members of migrant workers.” (See for example R v. Immigration Appeal
Tribunal and Surinder Singh, ex parte Secretary of State for the Home
Department [1992] ECR I 4265 (C-370/90).) This protection would not arise in
the absence of a cross-border element. (See for example Morson and Jhanjan
v. Netherlands [1982] ECR 3723 (Cases 35 and 36/82). Family members of a
worker who stays in his Member State of origin will not benefit from the
protections of Directive 2004/38 EC.
Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Land Nordrhein-

Westfalen [1997] ECR I 3171 (Joined cases C-64/96 and C-65/96) involved
third country national spouses of German nationals seeking to rely on rights
derived from their German spouses in Germany and whose German spouses
had never exercised their free movement rights. The third country national
spouses sought to rely on Regulation 1612/68; a secondary provision
concerned with the rights of workers and which included a right for workers to
be accompanied by family members. The Court of Justice stated:
16 It has consistently been held that the Treaty rules governing freedom
of movement and regulations adopted to implement them cannot be
applied to cases which have no factor linking them with any of the
situations governed by Community law and all elements of which are
purely internal to a single Member State (Joined Cases 35/82 and 36/82
Morson and Jhanjan v State of the Netherlands [1982] ECR 3723,
paragraph 16; Case 147/87 Zaoui v Cramif [1987] ECR 5511,
paragraph 15; Case C-332/90 Steen v Deutsche Bundespost [1992]
ECR I-341, paragraph 9; Case C-153/91 Petit v Office National des
Pensions [1992] ECR I-4973, paragraph 8; and Case C-206/91 Koua
Poirrez v Caisse d'Allocations Familiales [1992] ECR I-6685, paragraph
11).

17 Consequently, Community legislation regarding freedom of
movement for workers cannot be applied to the situation of workers who
have never exercised the right to freedom of movement within the
Community.
The German spouses resided and worked in Germany and had never
exercised free movement rights. Family members were not entitled to benefit
from the Regulation in a wholly internal situation. To grant spouses of static
workers the benefits of the Regulation would not correspond with the objectives
of the Treaty provision on free movement of workers, namely the objective of
enabling a worker to move freely within the territory of the other Member States
and to stay there for the purposes of employment.
The Court of Justice also considered the question whether the fundamental
principles of a Community moving towards European Union still permitted a
rule of national law to continue to be applied by a Member State against its own
nationals and their spouses from non-member countries in circumstances
where that rule of national law that is incompatible with Community law,
because it is in breach of the provision now found at Article 45(2) TFEU. The
CoJ held:
23 In that regard, it must be noted that citizenship of the Union,

established by Article 8 of the EC Treaty [now Article 20 TFEU], is not
intended to extend the scope ratione materiae of the Treaty also to
internal situations which have no link with Community law. Furthermore,
[a specified Article] of the Treaty on European Union provides that
nothing in that Treaty is to affect the Treaties establishing the European
Communities, subject to the provisions expressly amending those
treaties. Any discrimination which nationals of a Member State may
suffer under the law of that State fall within the scope of that law and
must therefore be dealt with within the framework of the internal legal
system of that State.
8.3 The Public Service Exception
There is an exception to the rule that Member States cannot impose nationality
conditions for access to employment. A Member States can reserve some
posts in the public service to its own nationals. The CoJ has interpreted the
public service exception provided for in Article 45 (4) TFEU narrowly. The
exception does not apply to all public service jobs.
The meaning of the exception has an autonomous EU law meaning; Sotgiu v.

Deutsche Bundespost [1974] ECR 153 (Case 152/73).
The CoJ in Commission v. Belgium [1980] ECR 3881 (Case 149/79)

considered that the exception applied to posts which “in fact presume on the
part of those occupying them the existence of a special relationship of
allegiance to the State and reciprocity of rights and duties which form the
foundation of the bond of nationality.”
The exception was limited to posts involving the exercise of power conferred
by public law and the safeguarding of the general interests of the State. A
Belgian rule required Belgian nationality to be employed in local authorities and
public undertakings. In the original preliminary reference, the CoJ did not have
enough factual information to apply the law. The matter came back before the

CoJ in Commission v. Belgium II [1982] ECR 1845 (Case 149/79) and the CoJ
ruled that the majority of the posts reserved to Belgian nationals did not come
within the exception. Jobs with Belgian National Railways and Belgian Local
Railways such as drivers, signalmen and night-watchmen and jobs with a
Municipality such as nurses, electricians and plumbers were not covered by the
exception. The CoJ ruled that a number of posts did come within the exception.
Examples included: head technical officer, supervisor, principal supervisor,
stock controller and night-watchmen of Municipalities.
In Lawrie-Blum v. Land Baden Wurtettemberg [1986] ECR 2121 (Case 66/85),

the CoJ held at paragraph 29:
...that the period of preparatory service for the teaching profession

cannot be regarded as employment in the public service within the
meaning of Article [45(4) TFEU] to which nationals of other Member
States may be denied access.
In Commission v. Luxembourg [1996] ECR I 3207 (C-473/93), the Commission

brought infringement proceedings seeking a declaration that, by maintaining a
nationality requirement in relation to workers who are nationals of other
Member States as regards access to civil servants' or public employees' posts
in the public sectors of research, teaching, health, inland transport, posts and
telecommunications, and in the water, gas and electricity distribution services,
Luxembourg had failed to fulfil its obligations under Article 45 TFEU. The
Member State strongly resisted the proceedings. The CoJ made the
declaration nonetheless.
In Colegio de Oficiales de la Marina Mercante Espanola [2003] ECR I 10391

(Case 405/01) that the public service exception could only be used if the public
law powers - here, the exercise of police powers in the event of danger on
board a merchant ship flying a Spanish flag (where the posts of master and
Chief mate of the ship were reserved to Spanish nationals) were exercised on
a regular basis and were not just a very minor part of their activities.
Haraldambidis v. Cassilli [2014] ECR I nyr, judgment of 10 September 2014
(Case 270/13), the CoJ determined that the post of President of a Port Authority
could not be reserved to Italian nationals.
Craig and de Búrca consider (at 768) that the types of posts which would be
covered by Article 45(4) TFEU include “the armed forces, police, judiciary, tax
authorities and certain public bodies engaged in preparing or monitoring legal
acts, and those which would probably not be included nursing, teaching and
non-military research in public establishments.” A Commission Notice lists
these posts together with the Diplomatic Corps.
The exception is confined to restricting access to public service positions and

discrimination in conditions once employed is prohibited: Sotgiu v. Deutsche
Bundespost [1974] ECR 153 (Case 152/73).
In Pöpperl (C-187/15, EU:C:2016:550), the Court examined the entitlement of

a former civil servant of a German Land, who left to work in another Member
State, to the retirement pension provided for employees of that Land. The Court
held that Article 45 TFEU had to be interpreted as precluding national
legislation under which a person having the status of civil servant in one
Member State, who leaves his post voluntarily to be employed in another
Member State, loses his retirement pension rights under the special pension

scheme, and is insured retrospectively under the general old-age insurance
scheme, conferring entitlement to a retirement pension lower than the pension
that would result from those rights. Such legislation constituted a restriction on
freedom of movement for workers since, even though it also applies to civil
servants of that Member State who resign to work in the private sector in the
same Member State, it is liable to prevent or deter them from exercising their
right to freedom of movement in the territory of the European Union.
9. Restrictions on Free Movement

Pursuant to Article 45(3) TFEU free movement of workers can be restricted on
the grounds of public policy, public security or public health.
Directive 2004/38/EC on the rights of citizens of the Union and their family
members to move and reside freely within the territory of the Member States
([2004] OJ L158/77) and previously Directive 68/380 abolished restrictions on
free movement and residence of workers and their families. The rights to enter,
move and reside can only be limited on the grounds of public policy, public
security and public health which as derogations from one of the fundamental
freedoms are strictly construed.
Articles 27-33 of Directive 2004/38 (the Citizenship Directive) govern the

restrictions on the rights of entry and residence and incorporate many of the
CoJ’s earlier decisions interpreting the derogations. Thus, while the restrictions
are discussed here in the context of Free Movement of Workers, they apply to
EU citizens generally.
Article 27 of the Citizenship Directive requires all measures adopted on the

basis of public policy or security will comply with the principle of proportionality.
Article 27 also provides that restrictions on the basis of public policy or security
shall be based exclusively on the personal conduct of the person. EU nationals
may be expelled by another Member State on grounds of public policy or
security. Article 28 of the Citizenship Directive sets out the substantive and
procedural protections for individuals subject to an expulsion order.
Article 28 of the Citizenship Directive provides:
1. Before taking an expulsion decision on grounds of public policy or

public security, the host Member State shall take account of
considerations such as how long the individual concerned has
resided on its territory, his/her age, state of health, family and
economic situation, social and cultural integration into the host
Member State and the extent of his/her links with the country of
origin.
2. The host Member State may not take an expulsion decision against
Union citizens or their family members, irrespective of nationality,
who have the right of permanent residence on its territory, except
on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens,

except if the decision is based on imperative grounds of public
security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous ten
years; or
(b) are a minor, except if the expulsion is necessary for the best
interests of the child, as provided for in the United Nations
Convention on the Rights of the Child of 20 November 1989.
The public policy exception was invoked by the UK government in Van Duyn v.
Home Office [1974] ECR I-1337 (Case 41/74). Van Duyn, a Dutch national
wished to travel to the UK to take up a job. She was refused entry to the UK
for public policy reasons: the job was with the Church of Scientology which was
viewed as socially harmful. She sought to rely on free movement of worker
provisions set out in the Treaty, a regulation and a directive. Directive 64/221
on the co-ordination of special measures concerning the movement and
residence of foreign nationals that are justified on the grounds of the public
policy, public policy or public health permitted Member States to restrict the
movements of non-nationals on public policy grounds. Article 3(1) of the
Directive provided “measures taken on grounds of public policy or public
security shall be based exclusively on the personal conduct of the individual
concerned.” The Directive limited the discretionary power conferred on the
Member States.
The CoJ considered that past association with an organisation could not justify
a refusal of entry but present association with an organisation might be
considered a voluntary act and part of the personal conduct of the individual.
The activities were not prohibited by the law of the Member State. The CoJ
stated that public policy should be interpreted strictly but at that time, accepted
that Member States had an area of discretion. A body does not have to be
criminalised before public policy exception can be invoked by a State.
Craig and de Búrca state (at 785), “[l]ater cases however emphasised the need
for some sort of compatibility, if not exactly equality, in the treatment of
nationals and non-nationals as far as such alleged threats to public policy and
security were involved.”
In Adoui and Coruaille v. Belgian State [1982] ECR (Cases 115 & 116/ 81), two
prostitutes had been refused residence permits in Belgium on public policy
grounds. The CoJ considered whether deportation would amount to
unnecessary or arbitrary discrimination on the grounds of nationality. The CoJ
held that Member States could not deny residence to non-nationals by reason
of conduct, which attributable to a Member State’s nationals did not give rise to
repressive measures or other genuine and effective measures to combat such
conduct.
In Rutili v. Ministre de l’Intérieur [1975] ECR 1219 (Case 36/75) the CoJ
suggested that measures of territorial restrictions (as opposed to expulsion)
could only be imposed on nationals of other Member States (for reasons of
public policy or security) if such measures could be imposed against a Member
State’s nationals. (See, however, the decision in Ministere de l’Interieur v.
Olazabal [2002] ECR 10981 (Case C-100/01), discussed below).
Criminal convictions are not of themselves grounds for taking such measures;
Article 27(2) and Rutili v. Ministre de l’Intérieur [1975] ECR 1219 (Case 36/75).
The CoJ has held that it is not possible to look at a past criminal record to
determine future conduct unless it constituted a present threat to the
requirements of public policy; R v. Bouchereu [1977] ECR 1999 (Case 30/77).

In Criminal Proceedings against Calfa [1999] ECR I 11 (Case C-348/96), the
CoJ considered a rule where mandatory expulsion for life (unless there were
strong family reasons) resulted from the conviction of a non-national of a drugs
offence without any account of the individual’s personal conduct or danger to
public policy was in breach of the requirements of Directive 64/221. A lifetime
ban was disproportionate.
In Ministere de l’Interieur v. Olazabal [2002] ECR 10981 (Case C-100/01), the

CoJ reiterated that the derogations in Article 45 TFEU permitted Member
States to adopt with respect to nationals of other Member States, and in
particular on the grounds of public policy, measures which they cannot apply
to their own nationals, inasmuch as they have no authority to expel the latter
from the territory or to deny them access thereto. This case concerned the
public security exception in the case of a Basque separatist and a French ban
on residence for ETA activities. The CoJ considered that a territorial restriction
could be imposed on an EU migrant worker where they could not be imposed
on a national. In paragraph 41 the CoJ, stated that where non-nationals were
subject to banishment they were also capable of being subjected to less severe
measures consisting of partial restrictions on their rights of residence. The CoJ
repeated Adoui and Coruaille idea that a Member State cannot by virtue of the
public policy reservation adopt measures against a national of another Member
State by reason of conduct which when engaged by nationals of the first
Member State does not give rise to punitive measures or other genuine and
effective measures intended to combat that conduct.
Like restrictions on public policy restrictions on public security must be on the

basis of personal conduct.
Gaydarov v. Direktor na Glavna direcksia “‘Ohranitelna politsia’ pri Ministerstvo

na vatreshnite raboti [2011] ECR I 11637 (Case C-430/10) involved a Bulgarian
national who had been convicted of drug trafficking in Serbia, had served his
sentence and returned to Bulgaria and upon his return was served with notice
of a measure, adopted by the Bulgarian Director of Police, prohibiting him from
leaving the country and from obtaining a passport.
The CoJ determined that Article 21 TFEU and Article 27 of the Citizenship
Directive do not preclude national legislation that permits the restriction of the
right of a national of a Member State to travel to another Member State in
particular on the ground that he has been convicted of a criminal offence of
narcotic drug trafficking in another State, provided that (i) the personal conduct
of that national constitutes a genuine, present and sufficiently serious threat
affecting one of the fundamental interests of society, (ii) the restrictive measure
envisaged is appropriate to ensure the achievement of the objective it pursues
and does not go beyond what is necessary to attain it and (iii) that measure is
subject to effective judicial review permitting a determination of its legality as
regards matters of fact and law in the light of the requirements of European
Union law.
In Petrea ECLI:EU:C:2017:684 (C-184/16) affirmed that in the case of a

person who seeks to re-enter a country where he is still the subject of an
expulsion order, Article 27(1) permits Member States to restrict freedom of
movement and residence of Union citizens and their family members,
irrespective of nationality on grounds of public policy, public security and public
health and that the very nature of an exclusion order is such that it remains in
force as long as it has not been lifted. Thus, the mere finding that the order has

been infringed allows the competent authorities to make a new expulsion
decision.
In the joined cases K. and H. F. C-331/16 and C-366/16; EU:C:2018:296, the

Grand Chamber ruled on the compatibility with Article 27(2) of Directive
2004/38 of a restriction on the residence of a Union citizen or a member of his
family suspected of having participated, in the past, in war crimes.
This matter involved an individual holding Croatian Bosnia-Herzegovinan

nationality who had been resident in the Netherlands since 2001 and in 2015
was declared to be an undesirable immigrant on the ground that he was guilty
of conduct within the scope of Article 1F(a) of the Geneva Convention, 26 in
that he had knowledge of war crimes and crimes against humanity committed
by special units of the Bosnian army and in that he himself had personally
participated in those crimes.
The second case involved an Afghan national who arrived in the Netherlands
in 2000 and moved to Belgium in 2011. His applications for residence in the
Netherlands and Belgium had been rejected on the ground that he had
committed crimes falling within the scope of Article 1F(a) of the Geneva
Convention.
As regards Article 27(1) of Directive 2004/38 EC it was recognised that Member

States may adopt measures which restrict the freedom of movement of Union
citizens and their family members, irrespective of nationality, on grounds, in
particular, of public policy or public security. Such a restriction on the freedom
of movement and residence of a Union citizen or a third-country national family
member of such a citizen, who has been the subject, in the past, of a decision
excluding that person from refugee status under Article 1F of the Geneva
Convention may fall within the scope of the concept of ‘measures taken on
grounds of public policy or public security’.
However, such measures may be taken only if, following a case-by-case

assessment by the competent national authorities, it is shown that the personal
conduct of the individual concerned currently constitutes a genuine and
sufficiently serious threat to a fundamental interest of society. The fact
that such a person, who applies for a right of residence in the territory of a
Member State, has been the subject, in the past, of a decision excluding him
from refugee status under the Geneva Convention does not enable the
competent authorities of that Member State to consider automatically that the
mere presence of that person in its territory constitutes, whether or not there is
any risk of re-offending, a genuine, present and sufficiently serious threat
affecting one of the fundamental interests of society, capable of justifying the
adoption of measures taken on grounds of public policy or public security.
A finding of a threat must be based on an assessment, by the competent

authorities of the host Member State, of the personal conduct of the individual
concerned, taking into consideration the findings of fact in the decision to
exclude that individual from refugee status and the factors on which that
decision is based, particularly the nature and gravity of the crimes or acts that
he is alleged to have committed, the degree of his individual involvement in
them, whether there are any grounds for excluding criminal liability, and
whether or not he has been convicted.

That overall assessment must also take account of the time that has elapsed
since the date when the crimes or acts were allegedly committed and the
subsequent conduct of that individual, particularly in relation to whether that
conduct reveals the persistence in him of a disposition hostile to the
fundamental values enshrined in Articles 2 and 3 TEU, capable of disturbing
the peace of mind and physical security of the population. The mere fact that
the past conduct of that individual took place in a specific historical and social
context in his country of origin, which is not liable to recur in the host Member
State, does not preclude such a finding.
The Court also stated that, in accordance with the principle of proportionality,
the competent authorities of the host Member State must weigh the threat
that the personal conduct of the individual concerned represents to the
fundamental interests of the host society against the protection of the
rights which Union citizens and their family members derive from the
directive.
Article 28(3) of the Citizenship Directive provides that an expulsion decision

may not be taken against Union citizens, except if the decision is based on
imperative grounds of public security, as defined by the Member States if they
(a) have resided in the Member State for the previous ten years59 or (b) are a
minor, except if the expulsion is necessary in the best interests of the child.
PI v. Oberbürgermeisterin der Stadt Remscheid [2012] ECR I nyr, decision of

22 May 2012 (Case 348/09) concerned an Italian national who was a long-term
resident in Germany. PI was convicted and sentenced for the sexual assault,
sexual coercion and rape of a minor. The Oberbürgermeisterin der Stadt
Remscheid determined that PI had lost the right to enter and reside in Germany
and ordered that he leave the territory, failing which he would be deported to
Italy. PI appealed against that decision and the German Court referred a
question to the CoJ on the interpretation of Article 28(3) asking whether the
term “imperative public security” in Article 28(3) covered only threats to the
internal and external security of the State. The referring court asked whether it
is possible to expel from the host Member State Union citizens who, while not
belonging to a group or any other kind of criminal organisation, have committed
extremely serious criminal offences which affect individual interests benefitting
from legal protection, such as sexual autonomy, life, freedom and physical
integrity, where there is a high risk they will re-offend, committing other similar
offences.
The CoJ determined that it was open to Member States to regard criminal
offences such as those concerning sexual exploitation of children (and which
is referred to Article 83 TFEU) as constituting a particularly serious threat to
one of the fundamental interests of society, which might pose a direct threat to
the calm and physical security of the population and thus be covered by the
concept of “imperative grounds of public security”, capable of justifying an
expulsion measure under Article 28(3), as long as the manner in which such
offences were committed discloses particularly serious characteristics, which
59For guidance on the factors taken into account in calculating this period, see , B v. Land
Baden-Württemberg and Secretary of State for the Home Department v. Franco Vomero
ECLI:EU:C:2018:256 (Joined Cases C-316/16 and C-424/16)..

is a matter for the referring court to determine on the basis of an individual
examination of the specific case before it.
The CoJ also held that the issue of any expulsion measure is conditional on the
requirement that the personal conduct of the individual concerned must
represent a genuine, present threat affecting one of the fundamental interests
of society or of the host Member State, which implies, in general, the existence
in the individual concerned of a propensity to act in the same way in the future.
Before taking an expulsion decision, the host Member State must take account
of considerations such as how long the individual concerned has resided on its
territory, his/her age, state of health, family and economic situation, social and
cultural integration into that State and the extent of his/her links with the country
of origin.
In Land Baden-Württemberg v. Tsakouridis [2010] ECR I 11979 (Case

C-145/09), the CoJ referred to the scheme and wording of Article 28 of the
Citizenship Directive and held that, by subjecting all expulsion measures in
Article 28(3) of directive to the existence of “imperative grounds” of public
security, the European Union legislature had clearly intended to limit measures
based on Article 28(3) to “exceptional circumstances”.60
In Secretary of State for the Home Department v. M.G. [2014] ECR I nyr,
judgment of 16 January 2014 (Case C-400/12), the CoJ held that periods of
imprisonment could not be taken into consideration in calculating the ten year
period in Article 28(3)(a).
Finally, in the joined cases of B and Vomero C-316/16 and C-424/16;

EU:C:2018:256, the Grand Chamber examined the eligibility for protection
against expulsion from a Member State, provided for in Article 28(3)(a) of
Directive 2004/38.
It involved a Greek national born in 1989 who, in 1993, following the separation
of his parents, moved with his mother, who held both Greek and German
nationality, to Germany where he had a right of permanent residence within the
meaning of Article 16 of Directive 2004/38 EC. He was given a prison sentence
of 5 years and 8 months in 2013 and was placed in detention on 12 April 2013.
In 2014, the German competent authority determined that he had lost his right
of entry to and residence in Germany and ordered him to leave the Member
State within one month.
The second case concerned an Italian national who had moved to the United
Kingdom in 1985. Between 1987 and 1999, he received several convictions in
Italy and in the UK, none of which resulted in his imprisonment. He was
convicted of manslaughter and sentenced to 8 years’ imprisonment in 2002 and
was released in July 2006. The UK competent authority ordered his deportation
in 2007.
The Court held that Article 28(3)(a) of Directive 2004/38 must be interpreted as
meaning that it is a prerequisite of eligibility for the protection against expulsion
the person concerned must have a right of permanent residence within the
meaning of Article 16 and Article 28(2) of the Directive. The Court noted that
under Directive 2004/38, the protection against expulsion gradually
60
On expulsion measures, see also the recent decision of the Grand Chamber in
Chenchooliah (C-94/18, EU:C:2019:693).

increases in proportion to the degree of integration of the Union citizen
concerned in the host Member State. Thus, whereas a citizen with a
permanent right of residence may be expelled on ‘serious grounds of public
policy or public security’, a citizen who can show that he has been resident for
the preceding 10 years may be expelled only on ‘imperative grounds of
public security’.
Accordingly, that enhanced protection linked to a 10-year period of residence

in the host Member State is available to a Union citizen only if he first satisfies
the eligibility condition for the lower level of protection, namely having a right of
permanent residence after residing legally in the host Member State for a
continuous period of 5 years.
Furthermore, the 10-year period of residence necessary for the grant of the
enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 must
be calculated by counting back from the date of the decision ordering that
person’s expulsion and must, in principle, be continuous.
Thus, periods of imprisonment may, by themselves and irrespective of periods

of absence from the host Member State, lead, where appropriate, to a severing
of the link with that State and to the discontinuity of the period of residence.
However, the fact that the person concerned was placed in custody by the
authorities of that State cannot be regarded as automatically breaking the
integrative links that that person had previously forged with that State
and the continuity of his residence there.
Therefore, in the case of a Union citizen who is serving a custodial sentence

and against whom an expulsion decision is adopted, the condition of having
‘resided in the host Member State for the previous 10 years’ laid down in that
provision may be satisfied where an overall assessment of the person’s
situation, taking into account all the relevant aspects, leads to the conclusion
that, notwithstanding that detention, the integrative links between the person
concerned and the host Member State have not been broken. Those aspects
include, inter alia, the strength of the integrative links forged with the host
Member State before the detention of the person concerned, the nature
of the offence that resulted in the period of detention imposed, the
circumstances in which that offence was committed and the conduct of
the person concerned throughout the period of detention.
Article 29(1) governs the public health requirement and provides that the only
diseases justifying restrictions on free movement are diseases with epidemic
potential as defined by the WHO or other infectious or contagious parasitic
diseases if they are subject to protection provisions applying to nationals of the
Member State.
This section may now come into sharp focus in light of the Covid-19 pandemic
and is another tool in Member States’ toolkit in that regard.
Article 30 of the Citizenship Directive requires notification of decisions to restrict

freedom of movement and residence on grounds of public policy, public
security and public health. Article 31 provides for procedural safeguards and
Article 32 concerns the permitted duration of expulsion orders61. Article 33
provides that expulsion orders may not be used as a penalty or legal
61

consequence of a custodial penalty unless they conform to the requirements of
Article 27, 28, or 29.
10. Frontier Workers

The position of so-called “frontier workers” has generated considerable case-
law in recent times. In Sopora v. Staatssecretaris van Financiën
EU:C:2015:108 (C-512/13), the Grand Chamber ruled on the interpretation of
Article 45 TFEU in the context of proceedings between a German national and
the Dutch tax authorities concerning the rejection of the German national’s
application for the flat-rate exemption for extraterritorial expenses actually
incurred in connection with his employment in the Netherlands
The Dutch tax authorities had considered that the worker was not entitled to
that exemption because he did not satisfy the condition laid down in the national
legislation requiring him, for more than two thirds of the 24-month period
preceding his recruitment in the Netherlands, to have resided at a distance of
more than 150 kilometres from the Netherlands border.
The Court’s findings can be summarised as follows:
– Having regard to the wording of Article 45(2) TFEU, which seeks

to abolish all discrimination based on nationality ‘between
workers of the Member States’, read in the light of Article 26
TFEU, freedom of movement for workers also prohibits
discrimination between non-resident workers if such
discrimination leads to nationals of certain Member States
being unduly favoured in comparison with others.
– All non-resident workers, whether they live more, or less, than
150 kilometres from the Netherlands border, may benefit from a
tax exemption for reimbursement of actual extraterritorial
expenses, whereas the administrative simplification of the claim
for those extraterritorial expenses which results from the benefit
of the flat-rate rule is reserved for workers who live more than
150 kilometres from the border.
– Court held that the mere fact that limits are set, for purposes of
granting flat-rate exemption, concerning distance in relation to
workers’ place of residence and the ceiling of the exemption
granted, taking as the reference point the border of Member
State in which the place of employment is situated and the
taxable base, respectively, even though that is necessarily
approximate in nature, cannot in itself amount to indirect
discrimination or an impediment to the free movement of
workers since:
–
1. the objective of that measure is to facilitate the
free movement of workers residing in other
Member States who are liable to incur additional
expenses; and

2. workers living less than 150 kilometres from the
border are able to benefit from the same
exemption on production of appropriate proof.
However, the position would be otherwise if those limits were set in such a way
that the flat-rate rule would systematically give rise to a net overcompensation
in respect of the extraterritorial expenses actually incurred.
11. Conclusion
The rights of workers and their families under EU law are very
substantial, adding up to a right of equal treatment with nationals of the
host Member State in almost every respect, apart from a few core areas,
such as employment in the public service, rewards for loyalty during
wartime, the right to vote in national elections, which reflect the special
nature of the relationship between the state and its citizens.

o Cahill et al, European Law (5th ed., OUP/Law Society of Ireland, 2011),
chapter 2
o Wyatt and Dashwood, European Union Law 6th ed., Hart Publishing,
2011) chapter 16
chapter 9
62 5th ed.

Chapter 14
EU Citizenship
1. Required Reading
o Chalmers et al (4th ed.), chapters 11 and 20
o The Citizenship Directive (Directive 2004/38/EC on the rights of citizens
of the Union and their family members to move and reside freely within
the territory of the Member States ([2004] OJ L158/77))
o Zhu and Chen v. Secretary of State for the Home Department [2004]
ECR I 9925 (Case C-200/02)
o Article 9 TEU
o Articles 20-25 TFEU
o Articles 18 and 19 TFEU.
2. EU Citizenship
EU Citizenship was not provided for in the founding treaties. The TEU (Treaty
of Maastricht) introduced status of EU citizenship. Post-Lisbon, the citizenship
provisions are in Article 9 TEU and in the Treaty on the Functioning of the
European Union in Articles 20-25 TFEU. The Treaty grants citizenship to those
who are nationals of an EU Member State. This is a rapidly expanding area of
EU Law.
3. The Treaty Provisions on Citizenship

Article 9 TEU provides:
In all its activities the Union shall observe the principle of the equality of
its citizens who shall receive equal attention from its institutions, bodies,
offices and agencies. Every national of a Member State shall be a
citizen of the Union. Citizenship of the Union shall be additional to
national citizenship and shall not replace it.
1. Citizenship of the Union is hereby established. Every person

holding the nationality of a Member State shall be a citizen of
the Union. Citizenship of the Union shall be additional to and not
replace national citizenship.
Article 20(2) TFEU63 provides:
Citizens of the Union shall enjoy the rights and be subject to the duties
provided for in the Treaties. They shall have, inter alia:
63 Ex Article 17(2) EC as amended by the Treaty of Lisbon.

(a) the right to move and reside freely within the territory of the
Member States;
(b) the right to vote and to stand as candidates in elections to

the European Parliament and in municipal elections in their
Member State of residence, under the same conditions as
nationals of that State;
(c) the right to enjoy, in the territory of a third country in which

the Member State of which they are nationals is not
represented, the protection of the diplomatic and consular
authorities of any Member State on the same conditions as
the nationals of that State;
(d) the right to petition the European Parliament, to apply to the

European Ombudsman, and to address the institutions and
advisory bodies of the Union in any of the Treaty languages
and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and

limits defined by the Treaties and by the measures adopted thereunder.
Articles 22 to 25 TFEU are set out later in the Chapter.
4. EU Citizenship dependent on nationality of one of the EU

Member States
EU citizenship is dependent on Member State nationality. EU citizenship does
not replace national citizenship but is additional to it.64 It is for each Member
State to determine who is a citizen of that State: R v. Secretary of State ex
parte Kaur [2001] ECR I-1237 (Case C-192/99). Chalmers65 notes (at 445),
“Member States control access to EU citizenship, since it is they who determine
who is a national citizen”.
Ms. Kaur was a Kenyan national of Asian descent. She became a citizen of
“the UK and Colonies” under the terms of the British Nationality Act, 1948. Later
UK legislation abolished the status of citizen of “the UK and the Colonies” and
divided those who had held that status into three categories. Under UK national
laws, Ms. Kaur did not have a right to enter or remain in the UK. She was
refused leave to remain on several occasions and judicially reviewed these
decisions. There existed two UK declarations to the EU setting out who were
nationals of the UK, one at the time of UK accession and a later 1982
declaration. The latter declaration was in similar terms to the original. The Court
of Justice stated that it was a matter of international law for each State to lay
down the conditions for acquisition and loss of nationality. The CoJ accepted
that the UK’s unilateral declarations delimited the scope ratione personae of
the Treaty. Under UK law Ms. Kaur was not a UK national. She could not
therefore avail of the benefits of EU citizenship.

65 2nd ed.

However, Member States do not have complete freedom. They must accept
national citizenship bestowed by another Member State. Micheletti v.
Delegación del Gobierno Cantabria [1992] ECR I 4239 (Case C-369/90)
involved an individual who had dual Italian/Argentinian nationality. Prior to
going to Spain his place of previous habitual residence was Argentina. Under
a domestic Spanish law where foreign nationals had dual nationality, how they
were treated in Spanish law was determined by their place of habitual
residence prior to Spain. Under Spanish law, this meant that Michelletti would
not be regarded as an Italian national and therefore he would not be regarded
as an EU citizen. The CoJ confirmed that it is for each MS to determine who is
a national of that State but added that that once nationality is acquired that
another Member State cannot challenge that determination.
10. Under international law, it is for each Member State, having due
regard to Community law, to lay down the conditions for the
acquisition and loss of nationality. However, it is not permissible
for the legislation of a Member State to restrict the effects of the
grant of the nationality of another Member State by imposing an
additional condition for recognition of that nationality with a view
to the exercise of the fundamental freedoms provided for in the
Treaty.
The CoJ held that once an individual established EU citizenship by showing

citizenship of a Member State, that it was not open to another Member State to
challenge that status or to refuse to recognise it as this would undermine the
rights and freedoms associated with EU citizenship and would mean that
whether dual citizens would benefit from such citizenship would vary from
Member State to Member State. The judgment in Michelletti contained a
proviso that Member States acting in sphere of nationality are to have regard
to EU law.
Rottmann [2010] ECR I 1449 (Case C-135/08) involved an individual who was
Austrian by birth but later naturalised as a German citizen. In 1995, Rottmann
transferred his residence to Munich after being involved in Austrian criminal
court proceedings in which he was accused of serious occupational fraud
(which he denied). In 1998, he applied for naturalisation in Germany. During
the process he did not mention the criminal proceedings against him and he
became a naturalised German in 1999.
This had the effect under Austrian law of causing him to lose his Austrian
nationality. The German authorities later became aware of criminal
proceedings in Austria. A determination was made to withdraw his German
nationality with retroactive effect on the grounds that that Rottmann had not
disclosed the fact that he was the subject of judicial investigation in Austria and
that he had, in consequence, obtained German nationality by deception. The
withdrawal of his naturalisation had not yet become definitive as Rottmann
brought proceedings to have that decision annulled.
It appeared, as a consequence of that determination and the operation of

Austrian law, that if the naturalised German citizenship was withdrawn that
Rottmann would become stateless. Thus not only would he lose his German
citizenship but also his EU citizenship.66
66See also the Grand Chamber judgment of the CJEU in M.G. Tjebbes C 221/17;
ECLI:EU:C:2019:189.

The German Court considered that the purport and significance of the proviso
in Michelletti to the effect that Member States must exercise their powers in the
sphere of nationality having due regard to European Union law had not yet been
clarified in the CoJ’s decisions. The German Court believed that it was not clear
whether the status of being stateless and the loss of EU citizenship, linked to
the withdrawal of naturalisation, was compatible with Article 20 TFEU. The CoJ
held (at [59]):
....it is not contrary to European Union law, in particular to Article [20

TFEU], for a Member State to withdraw from a citizen of the Union the
nationality of that State acquired by naturalisation when that nationality
was obtained by deception, on condition that the decision to withdraw
observes the principle of proportionality.
The German Court also referred a question concerning whether there would be
obligations on the Member State of which the individual originally had
nationality but the CoJ refused to answer the question in a vacuum where the
German withdrawal of nationality had not yet become definitive and the
Austrian authorities had not yet taken a decision. The CoJ did state (at [62]):
It is to be borne in mind, in these proceedings for a preliminary ruling,

that the principles stemming from this judgment with regard to the
powers of the Member States in the sphere of nationality, and also their
duty to exercise those powers having regard to European Union law,
apply both to the Member State of Naturalisation and to the Member
State of the original nationality.
In Tjebbes and Others (C-221/17, EU:C:2019:189), the Court considered

whether the loss of nationality of a Member State, entailing the loss of EU
citizenship was compatible with Article 20 TFEU, read in the light of Articles 7
and 24 of the Charter.
The Dutch Minister for Foreign Affairs had refused to examine the passport
applications of Dutch nationals, including a minor child, who possessed a
second nationality from a third country, on the ground that they had lost their
Dutch nationality, on foot of the “Law on Netherlands nationality” which
provided that an adult loses that nationality if he/ she is a national of another
country and has had his or her principal residence outside the EU for an
uninterrupted period of 10 years.
The Court held that EU law does not preclude, as a matter of principle, a
Member State from prescribing for reasons of public interest the loss of its
nationality, even if that loss entails the loss of citizenship of the Union:
32 … the situation of citizens of the Union who, like the applicants in

the main proceedings, are nationals of one Member State only and who,
by losing that nationality, are faced with losing the status conferred by
Article 20 TFEU and the rights attaching thereto falls, by reason of its
nature and its consequences, within the ambit of EU law. Thus, the
Member States must, when exercising their powers in the sphere of
nationality, have due regard to EU law (judgment of 2 March
2010, Rottmann, C-135/08, EU:C:2010:104, paragraphs 42 and 45).

33 In that context, the Court has already held that it is legitimate for
a Member State to wish to protect the special relationship of solidarity
and good faith between it and its nationals and also the reciprocity of
rights and duties, which form the bedrock of the bond of nationality
(judgment of 2 March 2010, Rottmann, C-135/08, EU:C:2010:104,
paragraph 51).
34 In this instance, it is apparent from the order for reference that,

by adopting Article 15(1)(c) of the Law on Nationality, the Netherlands
legislature sought to introduce a system to avoid, inter alia, the
undesirable consequences of one person having multiple nationalities.
The Netherlands Government also notes in its observations to the Court
that one of the objectives of the Law on Nationality is to preclude
persons from obtaining or retaining Netherlands nationality where they
do not, or no longer have, any link with the Kingdom of the Netherlands.
In its view, Article 16(1)(d) of that law is intended, in turn, to restore unity
of nationality within the family.
35 As mentioned by the Advocate General in points 53 and 55 of his

Opinion, when exercising its competence to lay down the conditions for
acquisition and loss of nationality, it is legitimate for a Member State to
take the view that nationality is the expression of a genuine link between
it and its nationals, and therefore to prescribe that the absence, or the
loss, of any such genuine link entails the loss of nationality. It is also
legitimate for a Member State to wish to protect the unity of nationality
within the same family.
36 In that regard, a criterion such as that laid down in Article 15(1)(c)

of the Law on Nationality, which is based on the habitual residence of
nationals of the Kingdom of the Netherlands, for an uninterrupted period
of 10 years, outside that Member State and outside the territories to
which the EU Treaty applies, may be regarded as an indication that
there is no such link. Similarly, as stated by the Netherlands
Government with regard to Article 16(1)(d) of that law, the lack of a
genuine link between the parents of a child who is a minor and the
Kingdom of the Netherlands can be understood, in principle, as a lack
of a genuine link between the child and that Member State.
37 The legitimacy, in principle, of the loss of the nationality of a

Member State in those situations is indeed supported by the provisions
of Article 6 and Article 7(3) to (6) of the Convention on the Reduction of
Statelessness which provide that, in similar situations, a person may
lose the nationality of a Contracting State in so far as he does not
become stateless. The risk of becoming stateless is precluded, in the
present case, by the national provisions at issue in the main
proceedings, given that their application is conditional on the
possession by the person concerned of the nationality of another State
in addition to Netherlands nationality. Similarly, Article 7(1)(e) and (2) of
the Convention on Nationality provides that a State Party may provide
for the loss of its nationality, inter alia, in the case of an adult, where
there is no genuine link between that State and a national habitually
residing abroad and, in the case of a minor, for children whose parents
lose the nationality of that State.

38 That legitimacy is further supported by the fact that, as noted by
the referring court, when the person concerned requests, within the 10-
year period laid down in Article 15(1)(c) of the Law on Nationality, the
issuing of a declaration regarding the possession of Netherlands
nationality, a travel document or a Netherlands identity card within the
meaning of the Law on Passports, the Netherlands legislature considers
that that person thus intends to retain a genuine link with the Kingdom
of the Netherlands, as shown by the fact that under Article 15(4) of the
Law on Nationality the issuing of one of those documents interrupts that
period of time and therefore precludes the loss of Netherlands
nationality.
39 Under those circumstances, EU law does not preclude, in

principle, that in situations such as those referred to in Article 15(1)(c)
of the Law on Nationality and Article 16(1)(d) thereof, a Member State
prescribes for reasons of public interest the loss of its nationality, even
if that loss will entail, for the person concerned, the loss of his or her
citizenship of the Union.
The Court did state, however, that same is the case only in so far as the
competent national authorities are in a position to examine, as an ancillary
issue, the consequences of the loss of that nationality and, where appropriate,
to have the those concerned recover their nationality ex tunc in the context of
an application for a travel document or any other document showing their
nationality.
Furthermore, in the context of that examination, the authorities and the courts
must determine whether the loss of the nationality of the Member State
concerned, when it entails the loss of citizenship of the Union and the rights
attaching thereto, has due regard to the principle of proportionality so far
as concerns the consequences of that loss for the situation of each person
concerned and, if relevant, for that of the members of their family, from the point
of view of EU law.
The significance of a Member State’s national laws on nationality can also be

seen in Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the
Home Department [2004] ECR I 9925 (Case C-200/02) and in Zambrano v.
Office national de l’emploi (ONEm) [2011] ECR I 1177 (Case C-34/09). These
cases will be discussed later in this chapter.
4.1 EU Citizenship as Fundamental Status
In many of its rulings on citizenship the CoJ has stated, “[European] Union
citizenship is destined to be the fundamental status of nationals of the Member
States.”67
5. The Right of EU Citizens to Move and Reside

The right to move and reside is stated in both Article 20(2)(a) TFEU and also in
Article 21 TFEU. This right is possibly the most important of the citizenship
rights. Prior to the introduction of citizenship, the Treaty already contained
67Grzelczyk [2001] ECR I-6193 (Case C-184/99), at [31]; Baumbast and R [2002] ECR I-7091
(Case C-413/99), at [82]; Garcia Avello, at [22]; Zhu and Chen, at [25]; Rottmann, at [43], and
Zambrano, at [41].

provisions on free movements in the areas of goods, workers and self-
employed persons, services and capital. Traditionally, the citizenship right to
move and reside was seeing as an add-on to those freedoms but the citizenship
legislation and case-law has grown and it is now more appropriate to study
citizenship prior to the other freedoms.
Prior to the advent of citizenship, the persons who had free movement rights
were workers, former workers, jobseekers, self-employed persons, service
recipients and protected family members. Non-economic migrants “originally
did not derive rights from the EEC Treaty.”68 In the 1990s three residency
directives were adopted; Directive 90/364 on a general right of residence [1990
OJ L180/26], Directive 90/365 on retired persons [1990 OJ L180/28] and
Directive 93/96 on students [1993 OJ L 317/59].
As Wyatt and Dashwood69 point out the right of residence in those Directives
was conditional upon two criteria:
first the non-economic migrant needed to have comprehensive health

insurance; secondly s/he needed to have sufficient resources so as not
to become a burden on the social security system of the State (in
respect of the first two Directives) and to avoid become a burden on the
State (in respect of students). If those two conditions were fulfilled the
migrant would have a right to reside in the Member States bestowed by
Community secondary legislation.70
As Cahill et al71 note (at 20):
There has been a gradual erosion of the link between economic activity
and free movement. Citizens, whether economically active or not, now
enjoy the right to move freely. Directive 2004/38 EC [The Citizenship
Directive] provides that citizenship of the Union confers on every citizen
a primary and individual right to move and reside freely within the
territory of the Member States, subject to the limitations laid down in the
Treaty. This right also extends to the family of citizens. [Emphasis
added.]
Article 21(1) TFEU72 provides:
Every citizen of the Union shall have the right to move and reside freely
within the territory of the Member States, subject to the conditions and
limitations laid down in this Treaty and by the measures adopted to give
them effect.
The right of EU citizens to move and reside under Article 21(1) TFEU is subject
to conditions and limitations in the Treaties and in secondary legislation.
68 Wyatt and Dashwood, at 664.

69 Ibid.
70 Ibid., at 664-665.
71 5th ed.
72 Ex Article 18 EC. Previously Article 8a as amended by the Treaty of Nice

6. The Citizenship Directive
The Citizenship Directive, Directive 2004/38 EC, was adopted in 2004. It was
considered “necessary to codify and review the existing [EU] instruments
dealing separately with workers, self-employed persons, as well as students
and other [economically] inactive persons in order to simplify and strengthen
the right of free movement and residence of all [European] Union citizens.”73
The Citizenship Directive consolidates earlier legislation and provides a
legislative framework for the right of EU citizens and their families to move and
reside.
Article 1 of the Citizenship Directive sets out the subject matter of the Directive.
It provides:
This Directive lays down:
(a) The conditions governing the exercise of the right of free

movement and residence within the territory of Member
States by the Union citizens and their family members;
(b) The right of permanent residence in the territory of the
Member States for Union citizens and their family members;
(c) The limits placed on the rights set out in (a) and (b) on
grounds of public policy, public security or public health.
Article 2 contains definitions.
Article 2(2) defines family members as:
“Family member” means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a
registered partnership, on the basis of the legislation of a
Member State, if the legislation of the host Member State
treats registered partnerships as equivalent to marriage and
in accordance with the conditions laid down in the relevant
legislation of the host Member State;
(c) the direct descendants74 who are under the age of 21 or are
dependants and those of the spouse or partner as defined
in point (b);
(d) the dependent direct relatives in the ascending line and

those of the spouse or partner as defined in point (b).
In Metock v. Minister for Justice Equality and Law Reform [2008] ECR I-6241
(Case C-127/08), the CoJ considered a preliminary reference from the Irish
High Court concerning judicial review proceedings in which the Minister had
refused residence cards to third country nationals married to EU nationals
resident in Ireland.
73Recital 3 of the Preamble to the Citizenship Directive.

74 For a discussion of the meaning of “direct descendant” see the recent Grand Chamber
judgment of the CJEU in SM (Child placed under Algerian kafala) (C-129/18, EU:C:2019:248).

Directive 2004/38 was transposed into Irish law by the European Communities
(Free Movement of Persons) (No 2) Regulations, 2006. The implementing
measure included a requirement that family members of EU citizens be lawfully
residence in another Member State prior to Ireland. The individual applicants in
the Metock case were third country nationals, spouses of EU nationals who had
sought residence cards but were refused on the basis that they did not satisfy
the requirement of prior lawful residence in another Member State. The
applicants submitted that the requirement was not compatible with Directive
2004/38 EC:
80. The answer to the first question must therefore be that Directive
2004/38 precludes legislation of a Member State which requires a
national of a non-member country who is the spouse of a Union citizen
residing in that Member State but not possessing its nationality to have
previously been lawfully resident in another Member State before
arriving in the host Member State, in order to benefit from the provisions
of that directive.
In Metock it was accepted that the marriages were not marriages of

convenience.
In Lounes v. Secretary of State for the Home Department ECLI:EU:C:2017:862

(C-165/16), the Grand Chamber ruled on the derived right of residence on
which a third country national may rely, on the basis of Article 21 TFEU, as a
“family member” of a Union citizen, in the Member State in which that citizen
resided before acquiring the nationality of that Member State in addition to the
nationality of origin.
Here, a third-country national entered the UK and later married a Spanish

national who had be a naturalised British citizen. He was later refused a
residence card as the family member of an EU citizen on the basis that his wife
had ceased to be an EEA national for the purposes of Directive 2004/38 EC
upon acquisition of her British citizenship.
As regards the applicability of Directive 2004/38 EC, the Court noted:
37 . . . Directive 2004/38 is not intended to govern the residence of a

Union citizen in the Member State of which he is a national…nor is the
directive intended to confer, in the territory of that Member State, a
derived right of residence on family members of that citizen who are
third-country nationals…
Thus, the Directive 2004/38 EC ceased to govern the residence in the UK of

the applicant’s wife when she acquired British nationality and her husband
could not benefit from a derived right of residence in the UK on the basis of the
Directive.
However, as regards whether the applicant could be accorded a derived right

of residence in that Member State on the basis of Article 21(1) TFEU, the Court
answered in the affirmative, observing:
49 . . . the situation of a national of one Member State, such as Ms

Ormazabal, who has exercised her freedom of movement by going to
and residing legally in another Member State, cannot be treated in the
same way as a purely domestic situation merely because the person

concerned has, while resident in the host Member State, acquired the
nationality of that State in addition to her nationality of origin.
51 . . . Ms Ormazabal, who is a national of two Member States and has,

in her capacity as a Union citizen, exercised her freedom to move and
reside in a Member State other than her Member State of origin, may
rely on the rights pertaining to Union citizenship, in particular the rights
provided for in Article 21(1) TFEU, also against one of those two
Member States.
52 The rights which nationals of Member States enjoy under that

provision include the right to lead a normal family life, together with their
family members, in the host Member State (see, by analogy, judgment
of 25 July 2008, Metock and Others, C-127/08, EU:C:2008:449,
paragraph 62).
53 A national of one Member State who has moved to and resides in

another Member State cannot be denied that right merely because he
subsequently acquires the nationality of the second Member State in
addition to his nationality of origin, otherwise the effectiveness of Article
21(1) TFEU would be undermined…
61 The conditions for granting that derived right of residence must not
be stricter than those provided for by Directive 2004/38 for the grant of
a derived right of residence to a third-country national who is a family
member of a Union citizen who has exercised his right of freedom of
movement by settling in a Member State other than that of which he is
a national. Even though Directive 2004/38 does not cover a situation
such as that mentioned in the preceding paragraph of this judgment, it
must be applied, by analogy, to that situation (see, by analogy,
judgments of 12 March 2014, O. and B., C-456/12, EU:C:2014:135,
paragraphs 50 and 61, and of 10 May 2017, Chavez-Vilchez and
Others, C-133/15, EU:C:2017:354, paragraphs 54 and 55).
In Coman v. Inspectoratul General pentru Imigrări and Ministerul Afacerilor

Interne ECLI:EU:C:2018:385 (C-673/16), the Constitutional Court of Romania
referred a question to the Court of Justice as to whether the American husband
of a Romanian man could be regarded as the “spouse” of an EU citizen in a
Member State that did not recognise same-sex marriage.
The Court noted that Directive 2004/38 EC could not confer a derived right of
residence on the third-country national family member in the Member State to
which the EU citizen spouse was a national. However, the Court went on to
acknowledge:
23 . . . in certain cases . . . third-country nationals, family members of a

Union citizen, who were not eligible, on the basis of Directive 2004/38,
for a derived right of residence in the Member State of which that citizen
is a national, could, nevertheless, be accorded such a right on the basis
of Article 21(1) TFEU (judgment of 14 November 2017, Lounes, C-
165/16, EU:C:2017:862, paragraph 46).

As regards the conditions for such a derived right of residence, the Court
warned:
25 . . . they must not be stricter than those laid down by Directive

2004/38 for the grant of a derived right of residence to a third-country
national who is a family member of a Union citizen having exercised his
right of freedom of movement by settling in a Member State other than
that of which he is a national. That directive must be applied, by
analogy, to [that] situation …
The Court observed:
35 . . . the term ‘spouse’ within the meaning of Directive 2004/38 is

gender-neutral and may therefore cover the same-sex spouse of the
Union citizen concerned.
36. . . a Member State cannot rely on its national law as justification for
refusing to recognise in its territory, for the sole purpose of granting a
derived right of residence to a third-country national, a marriage
concluded by that national with a Union citizen of the same sex in
another Member State in accordance with the law of that state. . . .
37 Admittedly, a person’s status, which is relevant to the rules on

marriage, is a matter that falls within the competence of the Member
States and EU law does not detract from that competence … The
Member States are thus free to decide whether or not to allow marriage
for persons of the same sex (judgment of 24 November 2016, Parris,
C-443/15, EU:C:2016:897, paragraph 59).
Yet, the Court ultimately found:
39 To allow Member States the freedom to grant or refuse entry into

and residence in their territory by a third-country national whose
marriage to a Union citizen was concluded in a Member State in
accordance with the law of that state, according to whether or not
national law allows marriage by persons of the same sex, would have
the effect that the freedom of movement of Union citizens who have
already made use of that freedom would vary from one Member State
to another, depending on whether such provisions of national law
exist… Such a situation would be at odds with the Court’s case-law . . .
to the effect that, in the light of its context and objectives, the provisions
of Directive 2004/38, applicable by analogy to the present case, may
not be interpreted restrictively and, at all events, must not be deprived
of their effectiveness (judgments of 25 July 2008, Metock and Others,
C-127/08, EU:C:2008:449, paragraph 84, and of 18 December 2014,
McCarthy and Others, C-202/13, EU:C:2014:2450, paragraph 32).
And held:
40 . . . the refusal by the authorities of a Member State to recognise, for

the sole purpose of granting a derived right of residence to a third-
country national, the marriage of that national to a Union citizen of the
same sex, concluded, during the period of their genuine residence in
another Member State, in accordance with the law of that State, may
interfere with the exercise of the right conferred on that citizen by Article

21(1) TFEU to move and reside freely in the territory of the Member
States. Indeed, the effect of such a refusal is that such a Union citizen
may be denied the possibility of returning to the Member State of which
he is a national together with his spouse.
The Court did acknowledge, however, that the right to freedom of movement
for persons may be justified if it is based on objective public-interest
considerations and if it is proportionate to a legitimate objective pursued by
national law. It noted, however:
44 . . . the concept of public policy as justification for a derogation from

a fundamental freedom must be interpreted strictly, with the result that
its scope cannot be determined unilaterally by each Member State
without any control by the EU institutions. It follows that public policy
may be relied on only if there is a genuine and sufficiently serious threat
to a fundamental interest of society (see, to that effect, judgment of 2
June 2016, Bogendorff von Wolffersdorff, C-438/14, EU:C:2016:401,
paragraph 67, and of 13 July 2017, E, C-193/16, EU:C:2017:542,
Finally, the Court discussed the fundamental rights at stake:
47 It should be added that a national measure that is liable to obstruct

the exercise of freedom of movement for persons may be justified only
where such a measure is consistent with the fundamental rights
guaranteed by the Charter, it being the task of the Court to ensure that
those rights are respected (see, by analogy, judgment of 13 September
2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 66)…
50 It is apparent from the case-law of the European Court of Human

Rights that the relationship of a homosexual couple may fall within the
notion of ‘private life’ and that of ‘family life’ in the same way as the
relationship of a heterosexual couple in the same situation (ECtHR, 7
November 2013, Vallianatos and Others v. Greece,
CE:ECHR:2013:1107JUD002938109, § 73, and ECtHR, 14 December
2017, Orlandi and Others v. Italy,
CE:ECHR:2017:1214JUD002643112, § 143).
Thus, in conclusion the Court held:
51 in a situation in which a Union citizen has made use of his freedom

of movement by moving to and taking up genuine residence, in
accordance with the conditions laid down in Article 7(1) of Directive
2004/38, in a Member State other than that of which he is a national,
and, whilst there, has created or strengthened a family life with a third-
country national of the same sex to whom he is joined by a marriage
lawfully concluded in the host Member State, Article 21(1) TFEU must
be interpreted as precluding the competent authorities of the Member
State of which the Union citizen is a national from refusing to grant that
third-country national a right of residence in the territory of that Member
State on the ground that the law of that Member State does not
recognise marriage between persons of the same sex.

As regards derived right of residence of third country nationals who are family
members of a Union citizen, in K.A. C-82/16; EU:C:2018:308,the Grand
Chamber, clarified the derived right of residence on which third country national
family members of a Union citizen who has never exercised his right to freedom
of movement may rely on the basis of Article 20 TFEU.
Several third country nationals submitted applications for residence for the
purposes of family reunification as either a dependent relative in the
descending line of a Belgian citizen, the parent of a Belgian minor or a lawfully
cohabiting partner in a stable relationship with a Belgian citizen.
The applications had not been examined on the ground that the persons
concerned had been the subject of an entry ban that remained in force, justified
by grounds of a threat to public policy.
The Court held, in the first place, that Article 20 TFEU precludes a practice of
a Member State not to examine such applications solely on the ground that the
third country national is the subject of an entry ban, without any examination
of the existence of a relationship of dependency between the Union
citizen and that third country national of such a nature that, in the event of
a refusal to grant a derived right of residence to the third country national, the
Union citizen would, in practice, be compelled to leave the territory of the
European Union to accompany the family member to his country of origin and
thereby be deprived of the genuine enjoyment of the substance of the rights
conferred by that status.
As regards dependency, the CJEU held that unlike minors (and in particular
young children), an adult is, as a general rule, capable of living an
independent existence apart from the members of his family. Where the
Union citizen is an adult, a relationship of dependency, capable of justifying the
grant to the third country national concerned of a derived right of residence, is
thus conceivable only in exceptional cases, where, in the light of all the
relevant circumstances, any form of separation of the individual
concerned from the member of his family on whom he is dependent is not
possible.
On the other hand, where the Union citizen is a minor, the assessment of the
existence of a relationship of dependency must be based on consideration, in
the best interests of the child, of all the specific circumstances, including the
age of the child, the child’s physical and emotional development, the extent of
his emotional ties to each of his parents, and the risks which separation from
the third country national might entail for that child’s equilibrium.
Some factors had no bearing on the grant of a derived right of residence to the
third country national concerned. Thus, it is immaterial that he relationship of
dependency relied on by the third country national comes into being after the
imposition on him of an entry ban. It is also immaterial that the decision may
have become final at the time when the third country national submits his
application for residence for the purposes of family reunification, or that that
decision may be justified by non-compliance with an obligation to return.
Where such a decision is justified on public policy grounds, such grounds

cannot automatically lead to a refusal to grant a derived right of residence –
this must be as a result of a specific assessment of all the circumstances of the
individual case, in the light of the principle of proportionality, the best

interests of the child and fundamental rights, indicating that the person
concerned represents a genuine, present and sufficiently serious threat
to public policy.
Article 3(1) sets out who are the beneficiaries of the Directive. This Directive
shall apply to all Union citizens who move to or reside in a Member State other
than that of which they are a national, and to their family members as defined
in point 2 of Article 2 who accompany or join them.
Article 3(2) requires the host Member State to facilitate the entry of other family
members, not included in the Article 2(2) definition.
In Secretary of State for the Home Department v. Rahman [2012] ECR I nyr,
decision of 5 September 2012 (Case C-83/11), the CoJ held that the Member
States are not required to grant every application for entry or residence
submitted by family members of a Union citizen who do not fall under the
definition in Article 2(2) of that directive. This is the case even if they show, in
accordance with Article 10(2) of the directive, that they are dependants of that
citizen. It is, however, incumbent upon the Member States to ensure that their
legislation contains criteria which enable those persons to obtain a decision on
their application for entry and residence that is founded on an extensive
examination of their personal circumstances and, in the event of refusal, is
justified by reasons. The Court of Justice also determined that the Member
States have a wide discretion when selecting those criteria, but the criteria must
be consistent with the normal meaning of the term “facilitate” and of the words
relating to dependence used in Article 3(2) and must not deprive that provision
of its effectiveness and that every applicant is entitled to a judicial review of
whether the national legislation and its application satisfy those conditions.
Article 4 governs the right of an EU citizen and his family to leave their territory
and go and work in another Member State. Member States are required to
facilitate this exit simply on production a valid identity card or a passport which
their Member State must provide for them and which will be valid throughout
the Community and any necessary transit countries. It is not permissible for
Member States to impose an exit visa or equivalent formality (Article 4(2)).
Article 5 governs the right of entry and is similar to Article 4. For entry all that
is required is a passport or national identity card. Visa requirements are not
permissible, except for certain third country nationals.
The Citizenship Directive provides for three time categories; a right of residence
up to three months, a right of residence after three months and a right of
permanent residence.
6.1 Right of residence up to three months
Article 6 provides that Union citizens shall have the right of residence for a
period of three months in the territory of another Member State without
conditions or formalities other than the requirement to hold a valid identity card
or passport. This also applies to third country national family members in
possession of a valid passport accompanying or joining the Union citizen.

Article 24(2) of Directive 2004/38 EC provides that Member States are not
obliged to provide social assistance during the first three months of residence.75
Article 14(1) provides the right of temporary residence is retained only as long
as the Union citizen and his family do not become an unreasonable burden on
the social assistance of the Member States. Wyatt and Dashwood consider (at
677), “[t]his means that if the host State confers some social assistance to
temporary residents, it is open to such State to terminate temporary residence
should the Union migrant rely excessively on social assistance.”
Article 14(4) provides that expulsion measures cannot be taken against EU

citizens or their families where the EU citizen is a worker, a self-employed
person or a jobseeker who entered the territory of the host Member State to
seek employment and is continuing to seek employment and has a genuine
chance of being engaged. As Chalmers76 points out (at 448) those citizens “are
in substance exempt from the ‘unreasonable burden’ condition.”
6.2 Right of residence for more than three months
Article 7 provides for a right of residence for more than three months. Article
7 is conditional on satisfying a list of requirements and provides:
1. All Union citizens shall have the right of residence on the territory of
another Member State for a period of longer than three months if
they:
(a) are workers or self-employed persons in the host

Member State; or
(b) have sufficient resources for themselves and their family
members not to become a burden on the social
assistance system of the host Member State during their
period of residence and have comprehensive sickness
insurance cover in the host Member State; or
(c) – are enrolled at a private or public establishment,
accredited or financed by the host Member State on the
basis of its legislation or administrative practice, for the
principal purpose of following a course of study,
including vocational training; and
– have comprehensive sickness insurance cover in the
host Member State and assure the relevant national
authority, by means of a declaration or by such
equivalent means as they may choose, that they have
sufficient resources for themselves and their family
members not to become a burden on the social
assistance system of the host Member
75 Article 24(2) provides, “[b]y way of derogation from paragraph 1, the host Member State shall
not be obliged to confer entitlement to social assistance during the first three months of
residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it
be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid
for studies, including vocational training, consisting in student grants or student loans to
persons other than workers, self-employed persons, persons who retain such status and
members of their families.” Article 14(4)(b) relates to job-seekers.
76 2nd ed.

(d) are family members accompanying or joining a Union
citizen who satisfies the conditions referred to in points
(a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to

family members who are not nationals of a Member State,
accompanying or joining the Union citizen in the host Member State,
provided that such Union citizen satisfies the conditions referred to
in paragraph 1(a), (b) or (c).
3. For the purposes of paragraph 1(a), a Union citizen who is no longer
a worker or self-employed person shall retain the status of worker
or self-employed person in the following circumstances:

employment office;
4. By way of derogation from paragraphs 1(d) and 2 above, only the

spouse, the registered partner provided for in Article 2(2)(b) and
dependent children shall have the right of residence as family
members of a Union citizen meeting the conditions under 1(c)
above. Article 3(2) shall apply to his/her dependent direct relatives
in the ascending lines and those of his/her spouse or registered
partner.”
The case-law of the CoJ provides definitions of workers and self-employed

persons and that case-law will be examined when we look at Free Movement
of Workers and Freedom of Establishment.
The eligible family members who can move and reside together with an EU
citizen student are limited to a spouse or registered partner, and dependent
children.
Articles 8 and 9 govern administrative formalities during the greater than

three-month period. Articles 10 and 11 contain provisions relating to
residence cards. Articles 12 and 13 provide for the continued residence of
family members in the event of death and or divorce or separation from the EU
citizen.
Singh v. Minister for Justice and Equality (Case C-218/14)

ECLI:EU:C:2015:476 clarified the rights of third country national spouses of EU

citizens in instances of divorce. This matter concerned third country nationals
(from India, Cameroon and Egypt) who were married to EU citizens (from
Latvia, Germany and Lithuania) and lived with them in Ireland for over four
years. In all three cases the wife left her husband, left Ireland and sought a
divorce in her own country (except for the German citizen, who petitioned for
divorce in the United Kingdom). The Minister for Justice and Equality (“the
Minister”) took the view that, since the EU citizens had already left Ireland when
the divorces were sought, the three foreign husbands no longer had a right of
residence in Ireland. It was argued that the right of residence of the three
spouses ceased to be valid at the time when their wives ceased to exercise
their right to reside in Ireland, even if the marriage had lasted for at least three
years (including one year in Ireland). The three spouses challenged the
decisions refusing the retention of their right of residence in Ireland.
The Irish High Court made a preliminary reference procedure under 267 TFEU,
asking the CoJ whether the right of residence of the three foreign husbands in
Ireland could be retained when the divorce took place after their wives had left
the country. The CoJ was invited to determine the limits of the right to enjoy a
right of residence under Article 7(2) of the Directive 2004/38/EC vis-à-vis third
country nationals who are family member of an EU citizen; and whether, when
an EU citizen leaves the host Member State and settles in another Member
State or in a third country, the foreign spouse still satisfies the conditions for
enjoying a right of residence under Article 7(2).
The CoJ held that where divorce proceedings are started and the marriage has
lasted for at least three years before the commencement of the divorce
proceedings, including at least one year in the host Member State, the foreign
spouse may, subject to certain conditions, retain the right of residence in that
State on the basis of Article 13(2) of the directive, both during the divorce
proceedings and after the decree of divorce, provided that at the date of
commencement of those proceedings he or she was resident in that State as
the spouse of an EU citizen accompanying or joining the citizen in that State .
Said EU citizen must reside in the host Member State, in accordance with
Article 7(1) of the directive, up to the date on which divorce proceedings are
commenced. If before the start of those proceedings the EU citizen leaves the
host Member State in which his or her foreign spouse resides, the spouse’s
right of residence in that State cannot be retained under Article 13(2) of the
directive.
Here as the three spouses who were EU citizens left Ireland before the divorce
proceeding had even started. The foreign husbands therefore lost their right of
residence at the time of departure of their wives, and that right could not be
revived subsequently at the time when the wives petitioned for divorce after
their departure from Ireland. The Court said:
54 According to the Court’s case-law, the condition that the third-

country national must accompany or join the Union citizen must be
understood as referring not to an obligation for the spouses to live
together but an obligation for them both to remain in the Member State
in which the spouse who is a Union citizen exercises his right of freedom
of movement (see, to that effect, judgment in Ogieriakhi, C‑244/13,
55 Thus nationals of third countries who are family members of a Union

citizen can claim the right of residence provided for by Directive 2004/38

only in the host Member State in which the Union citizen resides, and
not in another Member State (see, to that effect, judgment in Iida,
C‑40/11, EU:C:2012:691, paragraphs 63 and 64).
56 Furthermore, Article 7(2) of Directive 2004/38 grants family members

of a Union citizen who are third-country nationals, accompanying or
joining the Union citizen in the host Member State, a right of residence
for more than three months in that Member State, provided that the
Union citizen himself satisfies the conditions referred to in Article
7(1)(a), (b) or (c) of the directive.
57 Finally, under Article 14(2) of Directive 2004/38, the right of the family
members of a Union citizen to reside in the host Member State on the
basis of Article 7(2) of the directive continues only as long as they meet
the conditions laid down in that provision.
58 It follows that, where a Union citizen in a situation such as that of the

spouses of the applicants in the main proceedings leaves the host
Member State and settles in another Member State or in a third country,
the spouse of that Union citizen who is a third-country national no longer
meets the conditions for enjoying a right of residence in the host
Member State under Article 7(2) of Directive 2004/38….
59 In accordance with Article 13(2)(a) of Directive 2004/38, divorce

does not entail the loss of the right of residence of a Union citizen’s
family members who are not nationals of a Member State ‘where …
prior to initiation of the divorce … proceedings … the marriage … has
lasted at least three years, including one year in the host Member State’
....
62 That is not the case, however, if, before the commencement of those
proceedings, the Union citizen leaves the Member State in which his
spouse resides for the purpose of settling in another Member State or
a third country. In that event the third-country national’s derived right of
residence based on Article 7(2) of Directive 2004/38 has come to an
end with the departure of the Union citizen and can therefore no longer
be retained on the basis of Article 13(2)(a) of that directive.
63 It follows that, if on the date of commencement of the divorce

proceedings the third-country national who is the spouse of a Union
citizen enjoyed a right of residence on the basis of Article 7(2) of
Directive 2004/38, that right is retained, on the basis of Article 13(2)(a)
of that directive, both during the divorce proceedings and after the
decree of divorce, provided that the conditions laid down in the second
subparagraph of Article 13(2) of the directive are satisfied…
67 It follows that…. in circumstances such as those at issue in the main

proceedings, the departure of the spouse who is a Union citizen has
already brought about the loss of the right of residence of the spouse
who is a third-country national and stays behind in the host Member
State. The later petition for divorce cannot have the effect of reviving
that right, since Article 13 of Directive 2004/38 mentions only the
‘retention’ of an existing right of residence.

This ruling is significant, emanating from an Irish preliminary reference and
clarifies the narrow meaning of Article 7(2), namely, a national of a third country
who is married to an EU citizen residing in a Member State other than the
citizen’s own State can no longer enjoy a right of residence in that State where
the EU citizen leaves that State before the commencement of divorce
proceedings.
In NA (Case C-115/15, EU:C:2016:487), the Court considered whether a third-

country national who was divorced from a Union citizen and was the children’s
primary carer was entitled to retain her right of residence in the host Member
State even where the commencement of divorce proceedings post-dated the
departure from that Member State of the Union citizen spouse.
Referring to Singh, the Court reiterated that, in accordance with Article 7(2) of
that directive, the Union citizen who is the spouse of a third-country national
must reside in the host Member State up to the commencement of divorce
proceedings, if that third-country national is to be able to claim the retention of
his or her right of residence.
However, the Court held that, on the basis of the right of access of the children
of migrant workers to education in the host Member State under Article 12 of
Regulation No 1612/68, the children and the third-country national parent who
has sole custody of them are entitled to a right of residence in the host Member
State in a situation where the other parent is a Union citizen and has worked in
that Member State but ceased to reside there before the date on which the
children began to attend school. Thus, where the children enjoyed the right to
continue their education in the host Member State, although the parent who
was their carer was at risk of losing her right of residence, if that parent were
denied the possibility of remaining in the host Member State during the period
of her children’s education, that might deprive those children of a right which is
granted to them by the EU legislature.
Article 15 of the Directive sets out procedural safeguards in the case of those
residing in the territory of another Member State for either under three months
or between three months and five years. It guarantees that procedural
safeguards on expulsion, as outlined Articles 30 and 31 apply by analogy to all
decisions restricting free movement of Union citizens and their family members
on grounds other than public policy, public security or public health. Crucially,
at Article 15(3) it states that “the host Member State may not impose a ban on
entry in the context of an expulsion decision to which paragraph 1 applies.”
This provision was examined by the Grand Chamber in FS v. Staatssecretaris

van Justitie en Veiligheid Case C-719/19; ECLI:EU:C:2021:506 in respect of a
reference by the Dutch Supreme Court about, among other things, whether
Article 15(1) of Directive 2004/38 is to be interpreted as meaning that the
decision to expel a Union citizen from the territory of the host Member State
taken on the basis of that provision has been complied with and that that
decision no longer has any legal effects once that Union citizen has
demonstrably left the territory of that host Member State within the period for
voluntary departure laid down in that decision.
The dispute arose in the case of a Polish national, FS, residing illegally in The
Netherlands, who was later subject to several expulsion decisions and later
sought compensation on the assertion that he was unlawfully detained when

re-entering The Netherlands (following an expulsion decision) when arrested
on suspicion of shop-lifting.
The referring court observed, on the one hand, that it follows from Article 15(3)
of Directive 2004/38 that a Member State cannot, by an expulsion decision,
compel a Union citizen, after the departure or expulsion of the person
concerned from its territory, to reside outside that territory for more than three
months. If that were not the case, a removal decision would effectively amount
to a ban on entering the territory of the Member State that took that decision,
which would be contrary to that provision, as interpreted by the Court in the
case which gave rise to the judgment of 10 September
2019, Chenchooliah (C-94/18, EU:C:2019:693).
However, it was equally mindful, on the other hand, the general aim of an
expulsion decision is to ensure that the Union citizen who is the subject of that
decision resides permanently outside the territory of the host Member State.
Such an objective could not be achieved if, on the very day on which that Union
citizen leaves that territory, they could re-enter that territory under Article 5 of
Directive 2004/38 and reside there under Article 6 of that directive. In such a
case, it would be permissible to question the effectiveness of an expulsion
decision taken under Article 15 of that directive.
The CJEU acknowledged that the wording of Directive 2004/38 does not, in
itself, enable an answer to be given to the questions referred, and that it was
necessary to have regard to the objective of that provision and its context, and
to the aim of the directive itself. On its interpretation the Court stated:
73 If Article 15(1) of Directive 2004/38 were interpreted as meaning that

the mere physical departure of the Union citizen is sufficient for the
purposes of complying with an expulsion decision taken against him or
her under that provision, that Union citizen would only have to cross the
border of the host Member State in order to be able to return
immediately to the territory of that Member State and to rely on a new
right of residence under Article 6 of that directive. Acting repeatedly in
that way, that Union citizen could be granted numerous rights of
residence successively in the territory of a single Member State under
the latter article, even though, in reality, those various rights would be
granted for the purposes of the same single actual residence.
74 Such an interpretation would be tantamount to rendering redundant

the possibility for the host Member State to terminate the residence of
a Union citizen, pursuant to Article 6 of Directive 2004/38, where that
citizen reaches the end of his or her three-month residence on the
territory of that Member State, by allowing him or her, in practice, to
reside on that territory for more than three months despite the fact that
an expulsion decision has been adopted against him or her and that the
conditions laid down in Article 7 of that directive are not fulfilled. Under
that interpretation, by the mere fact of crossing the border of the host
Member State every three months, that Union citizen would be granted
a right of residence in fact of an unlimited duration, even though, first,
he or she might not comply with the conditions laid down in Article 7 of
that directive and, secondly, Article 6 of that directive, on which he or
she relies for the purposes of that period of residence without any actual

temporal limit, was for its part designed only for periods of residence of
up to three months, as follows from the very title of the latter article.
75 That interpretation, which does not require the Union citizen

concerned to genuinely and effectively terminate his or her residence in
the host Member State, would also risk undermining the balance which
Directive 2004/38 seeks to establish between, on the one hand, the
right to freedom of movement and residence of Union citizens and their
family members and, on the other hand, the protection of the social
assistance system of the host Member State with regard to the
unreasonable burden that the persons concerned may become during
a period of temporary residence on the territory of that Member State.
76 It should also be noted that, for the purposes of acquiring a right of

permanent residence in the host Member State, the Union citizen must,
according to Article 16(1) of Directive 2004/38, have resided legally
there for a continuous period of five years, subject to the derogations
provided for in Article 17 of that directive for workers who have ceased
their activity in that Member State. It is clear from Article 21 of that
directive that continuity of residence is broken by any expulsion decision
duly enforced against the person concerned.
77 Therefore, to regard the mere physical departure of a Union citizen

from the host Member State as being sufficient for the purpose of the
enforcement of an expulsion decision taken against the person
concerned would also partly render redundant the distinction clearly
established by Directive 2004/38 between temporary residence and
permanent residence. Indeed, that view would allow such a Union
citizen to rely on multiple successive temporary periods of residence in
that Member State in order, in fact, to reside there permanently, even
though he or she did not satisfy the conditions for a right of permanent
residence laid down in that directive.
78 The interpretation set out in paragraph 73 above is therefore

inconsistent with the overall context of Directive 2004/38 which, as the
Court has repeatedly held, introduced a gradual system as regards the
right of residence in the host Member State which reproduces, in
essence, the stages and conditions set out in the various instruments
of EU law and case-law preceding that directive and culminates in the
right of permanent residence (judgment of 22 January
2020, Pensionsversicherungsanstalt (Cessation of activity after
reaching retirement age), C-32/19, EU:C:2020:25, paragraph 33 and
the case-law cited).
In an insightful summary, the Court concluded:
questions referred is that Article 15(1) of Directive 2004/38 must be
interpreted as meaning that a decision to expel a Union citizen from the
territory of the host Member State, adopted on the basis of that
provision, on the ground that that Union citizen no longer enjoys a
temporary right of residence in that territory under that directive, cannot
be deemed to have been complied with in full merely because that
Union citizen has physically left that territory within the period

prescribed by that decision for his or her voluntary departure. In order
to enjoy a new right of residence under Article 6(1) of that directive in
the same territory, a Union citizen who has been the subject of such an
expulsion decision must not only have physically left the territory of the
host Member State, but must also have genuinely and effectively
terminated his or her residence there, with the result that, upon his or
her return to that territory, his or her residence cannot be regarded as
constituting in fact a continuation of his or her previous residence in that
territory. It is for the referring court to verify whether that is the case,
having regard to all the specific circumstances characterising the
particular situation of the Union citizen concerned. If it follows from such
a verification that the Union citizen has not genuinely and effectively
terminated his or her temporary residence in the territory of the host
Member State, that Member State is not obliged to adopt a new
expulsion decision on the basis of the same facts which gave rise to the
expulsion decision already taken against that Union citizen, but may rely
on that latter decision in order to oblige him or her to leave its territory.
6.3 Permanent residence
Directive 2004/38 EC introduced a right of permanent residence in a host

Member State. Generally, the right to permanent residence is obtained after
five years but there are provisions which allow it to be gained more quickly.
Articles 16-18 indicate the conditions under which an EU citizen may enjoy the
right.
Article 16 sets out the general rule governing Union citizens and their families.
It provides:
1. Union citizens who have resided legally for a continuous period of

five years in the host Member State shall have the right of
permanent residence there. This right shall not be subject to the
conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not

nationals of a Member State and have legally resided with the Union
citizen in the host Member State for a continuous period of five
years.
3. Continuity of residence shall not be affected by temporary absences

not exceeding a total of six months a year, or by absences of a
longer duration for compulsory military service, or by one absence
of a maximum of twelve consecutive months for important reasons
such as pregnancy and childbirth, serious illness, study or
vocational training, or a posting in another Member State or a third
country.
4. Once acquired, the right of permanent residence shall be lost only

through absence from the host Member State for a period exceeding
two consecutive years. [Emphasis added.]
Ziolkowski and Szeja v. Land Berlin [2011] ECR 14035 (Joined cases C-424/10
and C-425/10) involved an application for permanent residence under Article
16 of the Citizenship Directive. The applicants were Polish citizens residing

lawfully in Germany. However, their period of residency had not been in
accordance with the terms of Article 7 of the Directive. The Court of Justice
held at paragraph 51:
.... Article 16(1) of Directive 2004/38 must be interpreted as meaning

that a Union citizen who has been resident for more than five years in
the territory of the host Member State on the sole basis of the national
law of that Member State cannot be regarded as having acquired the
right of permanent residence under that provision if, during that period
of residence, he did not satisfy the conditions laid down in Article 7(1)
of the directive.
The CoJ also held that “periods of residence completed by a national of a

non-Member State in the territory of a Member State before the accession of
the non-Member State to the European Union must, in the absence of specific
provisions in the Act of Accession, be taken into account for the purpose of the
acquisition of the right of permanent residence under Article 16(1) of Directive
2004/38, provided those periods were completed in compliance with the
conditions laid down in Article 7(1) of the directive.”
The CoJ considers that the EU legislature has made the right of acquisition of
permanent residence pursuant to Article 16(1) subject to “the integration” of the
citizen in the host state. In, Onuekwere v. Secretary of State for the Home
Department [2014] ECR I nyr, judgment of 16 January 2014 (Case C-378/12)
this meant that periods of imprisonment could not be taken into consideration
in calculating the period required for permanent residency.
Certain exemptions from the five-year period are provided in Article 17

meaning that that permanent residency can be acquired in a lesser period. For
example, Article 17(1) provides that the right of permanent residence shall be
enjoyed after a period of less than 5 years by a worker (or self-employed
person) who at the time they stop working have reached the age to receive the
old age pension or take early retirement, providing they have been working in
that member State for at least the preceding twelve months and have resided
there continuously for more than three years. There are also exemptions in
respect of incapacity and involuntary unemployment. Article 18 concerns the
right of permanent residence of family members of EU citizens who have
satisfied the five-year time period.
The administrative formalities are governed by Articles 19-21. Member States

are required to issue documents certifying permanent residence (Article 19)
Validity of the residence card will not be affected by an absence of less than
two consecutive years.
Articles 22-26 regulate conditions under which the right of residence including
permanent residence is to be enjoyed.
Article 24 provides for a right to equal treatment but there are derogations from
this provision.
Articles 27-33 of Directive 2004/38 govern the restrictions on the rights of entry
and residence and incorporate many of the ECJ’s decisions interpreting the
derogations. The derogations will be considered in the Free Movement of
Workers chapter.

7. Conditions of Residence
Economically active persons (workers and self-employed) are exempt from the
conditions which apply to the non-economically active. During the first three
months of residency, non-economically active persons are required not to be
an “unreasonable burden” and if residence for greater than three months is
conditional on possessing sufficient resources not to become a burden and
comprehensive sickness insurance. The CoJ has determined that those
conditions are subject to the principle of proportionality.
The conditions were considered in Baumbast and R v. Secretary of State for

the Home Department [2002] ECR I 7091 (Case C-413/99). We will see later
that this case is also significant for determining that the right to move and reside
is a directly effective right.
Mr Baumbast was a German national, married to a Colombian national and

they had two children. The family resided in the UK from 1990. Originally Mr
Baumbast was a worker and later he was self-employed. His company did not
succeed and he then worked from 1993 for German companies in China and
Lesotho. Mrs Baumbast and the children remained in the UK. They did not
receive social assistance and had comprehensive medical insurance in
Germany. The UK Home Secretary refused to renew the family’s residence
permit in 1995. The national tribunal held that Mr Bambaust was not a worker
and was not covered by the Directive in force at the time (which contained
similar conditions to the Citizenship Directive). Mr Baumbast and his family
had comprehensive health insurance except that it would not cover emergency
treatment in the UK. Thus it appeared that Mr Bambaust was in breach of one
of the residency conditions. It appeared that he was not a worker, nor a person
fully covered by one of the Residence Directives. The CoJ held that the limits
and conditions had to be applied in accordance with the principle of
proportionality. It stated:
92. In respect of the application of the principle of proportionality to

the facts of the Baumbast case, it must be recalled, first, that it
has not been denied that Mr Baumbast has sufficient resources
within the meaning of Directive 90/364; second, that he worked
and therefore lawfully resided in the host Member State for
several years, initially as an employed person and subsequently
as a self-employed person; third, that during that period his
family also resided in the host Member State and remained
there even after his activities as an employed and self-employed
person in that State came to an end; fourth, that neither Mr
Baumbast nor the members of his family have become burdens
on the public finances of the host Member State and, fifth, that
both Mr Baumbast and his family have comprehensive sickness
insurance in another Member State of the Union.
93. Under those circumstances, to refuse to allow Mr Baumbast to

exercise the right of residence which is conferred on him by
[Article 21(1) TFEU77] by virtue of the application of the
provisions of Directive 90/364 on the ground that his sickness
insurance does not cover the emergency treatment given in the

host Member State would amount to a disproportionate
interference with the exercise of that right.
94. The answer to the first part of the third question must therefore
be that a citizen of the European Union who no longer enjoys a
right of residence as a migrant worker in the host Member State
can, as a citizen of the Union, enjoy there a right of residence
by direct application of [[Article 21(1) TFEU]. The exercise of
that right is subject to the limitations and conditions referred to
in that provision, but the competent authorities and, where
necessary, the national courts must ensure that those limitations
and conditions are applied in compliance with the general
principles of Community law and, in particular, the principle of
proportionality.
If the requirement of sickness insurance was read overly restrictively this would
be damaging to the Treaty based right to move and reside.
Yet in, A v. Latvijas Republikas Veselības ministrija, C-535/19;

ECLI:EU:C:2021:595 the Supreme Court of Latvia asked the CJEU to clarify
whether the legality of residence, as provided for in Article 7(1)(b) of Directive
2004/38, is to be understood as both giving a person a right of access to the
social security system and constituting a reason to exclude him or her from
social security. The question centred, in particular, on whether the fact that the
applicant had comprehensive sickness insurance cover must be regarded as
capable of justifying the refusal to include him within the health care system
financed by the State.
The CJEU held:
53 . . . it is apparent from Article 7(1)(b) of Directive 2004/38, read in

the light of recital 10 thereof, that Member States may require Union
citizens who are nationals of another Member State and who wish to
have the right of residence in their territory for a period of longer than
three months without being economically active to have, for themselves
and their family members, comprehensive sickness insurance cover in
the host Member State and sufficient resources not to become a burden
on the social assistance system of that Member State during their
period of residence (judgment of 19 September 2013, Brey, C-140/12,
54 Under Article 14(2) of Directive 2004/38, the right of Union citizens

and their family members to reside in the host Member State on the
basis of Article 7 of that directive continues only as long as those
citizens and family members meet the conditions laid down in the latter
provision (judgment of 2 October 2019, Bajratari, C-93/18,
55 It thus follows from Article 7(1)(b) of Directive 2004/38, read in

conjunction with Article 14(2) thereof, that, throughout the period of
residence in the host Member State of more than three months and less
than five years, economically inactive Union citizens must, inter alia,
have comprehensive sickness insurance cover for themselves and their

family members so as not to become an unreasonable burden on the
public finances of that Member State.
56 That condition for residence in accordance with Directive 2004/38

would be rendered redundant if it were to be considered that the host
Member State is required to grant, to an economically inactive Union
citizen residing in its territory on the basis of Article 7(1)(b) of Directive
2004/38, affiliation free of charge to its public sickness insurance
system…
62 . . . since the compatibility with Directive 2004/38 of the residence of

such a Union citizen for a period of more than three months and less
than five years is subject, inter alia, to the condition that he or she has
comprehensive sickness insurance cover in order not to become an
unreasonable burden on the public finances of the host Member State,
that Union citizen cannot rely on the right to equal treatment in order to
claim access free of charge to the public sickness insurance system, as
otherwise that condition would be rendered redundant, as has been
established by paragraph 56 above. Thus, any unequal treatment which
might result, to the detriment of such a Union citizen, from access which
is not free of charge to that system would be the inevitable consequence
of the requirement, laid down in Article 7(1)(b) of that directive, that that
citizen must have comprehensive sickness insurance cover.
The resources conditions were also considered in the case of Zhu and Chen v.
Secretary of State for the Home Department [2004] ECR I 9925 (Case C-
200/02). Mrs Chen was a Chinese national who was employed by a Chinese
company working in the UK. Mrs Chen moved to Northern Ireland temporarily
to give birth so that her second child (Catherine) would have Irish nationality.
The UK Home Secretary refused Catherine and her mother long-term
residence permits. Mrs Chen had sufficient resources to prevent her or
Catherine becoming a burden on the social security system of the UK and also
had health insurance. The Home Secretary considered that Catherine was not
exercising EU rights and that Mrs Chen was not covered by EU law. The Court
of Justice stated that it was clear that Catherine had both sufficient resources
and health insurance provided by her mother for her not to become a burden
on the social welfare system of the host Member State. The Court of Justice
determined that Catherine had a right of residence in the UK.
The Citizenship Directive provides at Article 8(4), “Member States may not lay
down a fixed amount which they regard as ‘sufficient resources’.” Member
States are obliged to take the personal situation of the individual into account.
Article 8(4) also provides, “[i]n all cases this amount shall not be higher than
the threshold below which nationals of the host Member State become eligible
for social assistance, or where this criterion is not applicable, higher than the
minimum social security pension paid by the host Member State.”

8. Non-Discrimination
Within the scope of application of the Treaties, and without prejudice to

any special provisions contained therein, any discrimination on the
grounds of nationality shall be prohibited.
Article 24 of the Citizenship Directive is concerned with the right to equal

treatment of EU citizens in a host Member State.
1. Subject to such specific provisions as are expressly provided for in

the Treaty and secondary law, all Union citizens residing on the basis
of this Directive in the territory of the host Member State shall enjoy
equal treatment with the nationals of that Member State within the
scope of the Treaty. The benefit of this right shall be extended to family
members who are not nationals of a Member State and who have the
right of residence or permanent residence.
2. By way of derogation from paragraph 1, the host Member State shall

not be obliged to confer entitlement to social assistance during the first
three months of residence or, where appropriate, the longer period
provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition
of the right of permanent residence, to grant maintenance aid for
studies, including vocational training, consisting in student grants or
student loans to persons other than workers, self-employed persons,
persons who retain such status and members of their families.
The non-discrimination prohibition applies within the scope of the Treaty.

Where an EU citizen is exercising his or her right “to move and reside” and this
right is impacted by laws or practices in a host Member State theses will fall
within the scope of the Treaty and these laws and practices will be prohibited if
they discriminate against the EU citizen.
An example is the decision in Garcia Avello v. Belgium [2003] ECR I-11613

(Case C-148/02) which concerned a Belgian national who had married a
Spanish national, had two children, living in Belgium and wished to have dual
surnames handed down according to Spanish tradition. The Belgian authorities
refused.
The CoJ considered whether the case came within the scope of EU law. The
CoJ stated that Article [20 TFEU] conferred the citizenship of the EU on every
person holding nationality of a Member State. As the children held dual-
nationality of two Member States they enjoyed the status of EU citizens. The
status of citizenship enables citizens to enjoy the same treatment in law
irrespective of nationality but subject to express exceptions. The situations
falling within the scope of the Treaty included those involving the exercise of
the freedom to move and reside as conferred by [Article 21 TFEU]. Although
rules governing surnames were within Member State competence, a Member
State must nonetheless comply with EU Law in particular the Treaty provisions
on the freedom of every citizen of the Union to move and reside in the territory
of the Member States. It seems that the CoJ was concerned that the lack of
dual surnames would impede the ability of the citizen to move subsequently.

8.1 Non-economically active persons
An issue arose as to whether the non-discrimination provision in [Article 18

TFEU] read together with the citizenship provision in [Article 21 TFEU] would
impact on social welfare.
In Martinez-Sala v. Freistaat Bayern [1998] ECR I 2691 (Case C-85/96), the

requirement of a residence permit for receipt of a benefit was found to be
discriminatory where a Member State’s own nationals were not subject to this
requirement. The requirement was thus prohibited by Article [18 TFEU].
Martinez-Sala was a Spanish national living in Germany since 1968. She had
previously worked but had been receiving social assistance since 1989. Until
1984 she had received residence permits but after that, only documents stating
that a permit had been applied for. She was issued with a permit in 1994. In
1993, i.e. at a time that she did not have a permit she applied for a child raising
allowance. Her application was rejected as she did not have German
nationality, a residence entitlement or a residence permit. Ms. Martinez-Sala
was, however, lawfully resident in Germany. Her difficulty was in producing
documentary proof.
Craig and de Búrca78 state (at 834), “[i]t seemed unlikely that she would be
considered economically active or economically self-sufficient, although the
[CoJ] left open the possibility the she could, depending on the facts before the
national court, be a worker.”
The CoJ held that as Ms Martinez-Sala was lawfully resident, she could not be
excluded from the scope of equal treatment.
Craig and de Búrca79 state (at 872) that the decision in Martinez-Sala
established:
so long as an EU national is lawfully resident within another Member

State, he or she is entitled, on a combined reading of Articles 18 and
20(2) TFEU to equal treatment with Member State nationals in relation
to benefits which fall within the scope of the Treaty. The [CoJ] thus
applied the general principle of non-discrimination on grounds of
nationality to her purely on the basis of her EU citizenship and her
residence in Germany. It was not necessary for there to be involvement
in any economic activity as a worker or service provider, nor was it
necessary to show preparation for a future economic activity as a
student, etc. However the fact that the [CoJ] did not base her right to
residence on Articles 20-21 TFEU, because it had found that Germany
had authorised her residence under the terms of a Council of Europe
Convention on social and medical assistance, meant that the Court did
not have to confront the limiting conditions referred to in Articles 20-21
TFEU, and especially the requirement under secondary legislation that
she should have sufficient resources to avoid become a burden on the
social assistance scheme of the state.
78 5th ed.
79 6th ed.

Castro Oliveira80 considered (at 78–80) that the CoJ enlarged the scope of
application of the Treaty in two respects:
Firstly, the simple fact that Mrs Sala was a Union citizen lawfully residing
in another Member State was deemed to be enough for her to fall under
the scope of application of the EC Treaty. Secondly, the Court ruled that
a benefit previously granted only to workers should also be granted to
a person other than a worker.
Castro Oliveira also notes that this ruling also has limits
It is clear that the facts of the case are very specific. Mrs Sala had been
living in Germany for twenty-five years at the relevant time. She was a
mother of two children and was already receiving social assistance from
the German government. What is more important, the Court did not
derive new rights of residence from Union citizenship. It took for granted
that Mrs Sala already had a right to reside in Germany.
In Trojani v. CPAS [2004] ECR 7375 (Case C-465/02), a case concerning a

French national in Belgium who was given accommodation in a Salvation army
hostel where he performed some jobs, approximately 30 hours per week, in
return for lodgings and pocket money, as part of a socio-occupational
reintegration programme. After two years he sought social assistance, on the
basis that he was a worker. This is an important case in the context of the Free
Movement of Workers provision [now Article 45 TFEU] and the CoJ stated that
Trojani could claim a right of residence as a worker only if the paid activity
carried out was real and genuine but that it was for the national court to make
that determination.
The CoJ then went on to consider the second question referred, which was
whether an EU citizen in the situation of Mr Trojani may enjoy a right of
residence by direct application of Article 21 TFEU. The CoJ held that a citizen
of the Union may, simply as a citizen of the Union, enjoy a right of residence
there by direct application of [Article 21(1) TFEU]. The exercise of that right is
subject to the limitations and conditions referred to in that provision, but the
competent authorities must ensure that those limitations and conditions are
applied in compliance with the general principles of Community law, in
particular the principle of proportionality. As Mr Trojani was in possession of a
residence permit, he could rely [Article 18 TFEU] in order to be granted a social
assistance benefit such as the minimex. Implicit in this decision is that once a
citizen is lawfully resident in another Member State he is entitled to social
assistance in the host State. It is open to a Member State to revoke the right
of residence but revocation cannot result automatically from recourse to social
assistance. This can only be done if it is a proportionate response.
Craig and de Búrca81 state (at 873), “although [Trojani] could not derive a right
of residence from Article 21 TFEU, if he lacked sufficient resources within the
meaning of the Directive, he was nonetheless entitled, so long as he was
lawfully resident on some other basis within the state, to have access to social
assistance on the same conditions as nationals under Article 18 and 21 TFEU.”
[Footnotes omitted.]
80 CMLRev 2002.
81 6th ed.

Thus, in both Martinez-Sala and Trojani the equal treatment to social welfare
payments was grounded on lawful residence in the host Member State. The
situation of both of these individuals had appeared precarious as they did not
satisfy the sufficient resources and sickness insurance conditions.
Nevertheless, as EU citizens lawfully resident in another Member State they
were entitled to equal treatment.
Finally, the Court built upon Trojani in the Austrian preliminary reference of
Pensionsversicherungsanstalt v. Brey (ECLI:EU:C:2013:565)(Case C-140/12),
ruling that although Member States were entitled to subject a migrant’s
entitlement to social benefits to a condition of fulfilment of domestic
requirements for lawful residence, those specific requirements must also
comply with EU law: -
44. The Court has consistently held that there is nothing to prevent, in
principle, the granting of social security benefits to Union citizens who
are not economically active being made conditional upon those citizens
meeting the necessary requirements for obtaining a legal right of
residence in the host Member State (see, to that effect, Case
C-85/96 Martínez Sala [1998] ECR I-2691, paragraphs 61 to 63; Case
C-184/99 Grzelczyk [2001] ECR I-6193, paragraphs 32 and 33; Case
C-456/02 Trojani [2004] ECR I-7573, paragraphs 42 and 43; Case
C-209/03 Bidar [2005] ECR I-2119, paragraph 37; and Case
C-158/07 Förster [2008] ECR I-8507, paragraph 39).
45. However, it is important that the requirements for obtaining that right
of residence – such as, in the case before the referring court, the need
to have sufficient resources not to apply for the compensatory
supplement – are themselves consistent with EU law.
A requirement for lawful residence required that a migrant must have sufficient
resources so as not to apply for a social benefit as soon as the three-month
unconditional period of residence under Article of Directive 2004/38 EC expired.
The CoJ held that while eligibility for a social assistance benefit could provide an
indication that an individual may lack the sufficient resources to avoid becoming
an unreasonable burden on the host state, the mere fact that a national receives
that social benefit is insufficient in itself to prove that he constitutes such a
burden. The mere fact that Brey had applied for a benefit was sufficient to
preclude him from receiving it prevented the national authorities from carrying
out an overall assessment of his income and personal circumstances so as to
determine in a proportionate manner whether and if so how much of a burden he
might impose of the state, and thus was contrary to EU law82:
76. As regards the legislation at issue in the main proceedings, it is clear

from the explanation provided by the Austrian Government at the
hearing that, although the amount of the compensatory supplement
depends on the financial situation of the person concerned as
measured against the reference amount fixed for granting that
supplement, the mere fact that a national of another Member State who
is not economically active has applied for that benefit is sufficient to
preclude that national from receiving it, regardless of the duration of
residence, the amount of the benefit and the period for which it is
82 Ibid.

available, that is to say, regardless of the burden which that benefit
places on the host Member State’s social assistance system as a
whole.
77. Such a mechanism, whereby nationals of other Member States who

are not economically active are automatically barred by the host
Member State from receiving a particular social security benefit, even
for the period following the first three months of residence referred to in
Article 24(2) of Directive 2004/38, does not enable the competent
authorities of the host Member State, where the resources of the person
concerned fall short of the reference amount for the grant of that benefit,
to carry out – in accordance with the requirements under, inter alia,
Articles 7(1)(b) and 8(4) of that directive and the principle of
proportionality – an overall assessment of the specific burden which
granting that benefit would place on the social assistance system as a
whole by reference to the personal circumstances characterising the
individual situation of the person concerned.
78. In particular, in a case such as that before the referring court, it is

important that the competent authorities of the host Member State are
able, when examining the application of a Union citizen who is not
economically active and is in Mr Brey’s position, to take into account,
inter alia, the following: the amount and the regularity of the income
which he receives; the fact that those factors have led those authorities
to issue him with a certificate of residence; and the period during which
the benefit applied for is likely to be granted to him. In addition, in order
to ascertain more precisely the extent of the burden which that grant
would place on the national social assistance system, it may be
relevant, as the Commission argued at the hearing, to determine the
proportion of the beneficiaries of that benefit who are Union citizens in
receipt of a retirement pension in another Member State.
8.2 Non-economically Persons and Article 24 of the Citizenship

Directive
An important decision on Article 24 of the Citizenship Directive and

economically inactive citizens is Dano v. Jobcentre Leipzig [2014] ECR I nyr,
judgment of 11 November 2014 (Case C-333/13). Jobcentre Leipzig in
Germany had refused subsistence benefits and a contribution to heating and
accommodation costs to Ms Dano, a Romanian national, as well as refusing
social allowance to her son. This refusal was based on German legislation
which excluded nationals of other Member States who did not have a right of
residence under the Citizenship Directive in Germany from social welfare
entitlements.
Ms Dano had been resident in Germany for longer than three months, was not
economically active and had not entered Germany in order to seek work. Ms
Dano and her infant son resided in Germany with her sister who provided for
their needs.
Ms Dano had sought to challenge the refusal of benefits inter alia on the basis
of the right to equal treatment in Article 24 of the Citizenship Directive. The
CoJ recalled (at [68]) that Article 24(1) of Directive 2004/38 provides that all
Union citizens residing on the basis of the directive in the territory of the host

Member State are to enjoy equal treatment with the nationals of that Member
State within the scope of the Treaty. The CoJ recalled (at [70]–[72] the scheme
and conditions set out in the Citizenship Directive for rights of residence up to
three months (Article 6), for rights of residence for periods greater than three
months (Article 7) and for permanent residence (Article 16). The CoJ then
stated:
73. In order to determine whether economically inactive Union citizens,

in the situation of the applicants in the main proceedings, whose period
of residence in the host Member State has been longer than three
months but shorter than five years, can claim equal treatment with
nationals of that Member State so far as concerns entitlement to social
benefits, it must therefore be examined whether the residence of those
citizens complies with the conditions in Article 7(1)(b) of Directive
2004/38. Those conditions include the requirement that the
economically inactive Union citizen must have sufficient resources for
himself and his family members.
74. To accept that persons who do not have a right of residence under
Directive 2004/38 may claim entitlement to social benefits under the
same conditions as those applicable to nationals of the host Member
State would run counter to an objective of the directive, set out in recital
10 in its preamble, namely preventing Union citizens who are nationals
of other Member States from becoming an unreasonable burden on the
social assistance system of the host Member State.
75. It should be added that, as regards the condition requiring

possession of sufficient resources, Directive 2004/38 distinguishes
between (i) persons who are working and (ii) those who are not. Under
Article 7(1)(a) of Directive 2004/38, the first group of Union citizens in
the host Member State have the right of residence without having to
fulfil any other condition. On the other hand, persons who are
economically inactive are required by Article 7(1)(b) of the directive to
meet the condition that they have sufficient resources of their own.
76. Therefore, Article 7(1)(b) of Directive 2004/38 seeks to prevent

economically inactive Union citizens from using the host Member
State’s welfare system to fund their means of subsistence.
The CoJ determined (at [78]) that Member States must have the possibility,
pursuant to Article 7 of the Citizenship Directive, of refusing to grant social
benefits to economically inactive Union citizens who exercise their right to
freedom of movement solely in order to obtain another Member State’s social
assistance although they do not have sufficient resources to claim a right of
residence. There is no automatic right to social benefits. The applicants did not
have sufficient resources to qualify for residence pursuant to Article 7 and
therefore were not entitled to invoke the principle of non-discrimination in Article
24(1) of the Citizenship Directive.
The sentiment expressed in Dano was followed in Jobcenter Berlin Neukölln v.

Alimanovic (Case C-67/14) (ECLI:EU:C:2015:597). Ms. Alimanovic, a Swedish
national, and her three German-born children, all possessing Swedish
nationality, sought access to German social welfare benefits, namely,
subsistence allowance for the long-termed unemployed and social allowances
for beneficiaries unfit to work. Alimanovic and her oldest daughter had

temporary jobs between June 2010 and May 2011 in Germany. As a result,
they received social benefits from December 1, 2011 to May 31, 2012, after
which the “Job Center” in question withdrew their grant, stating they had lost
their ‘employee’ status half a year after becoming involuntarily unemployed.
German law excluded jobseekers from an entitlement to social assistance
benefits. Uncertain about the valid transposition of EU Law into domestic
legislation, the Bundessozialgericht (Federal Social Court) referred preliminary
questions to the Court of Justice, essentially, as to whether jobseekers enjoyed
a right to equal treatment with regard to access to social assistance. The Court
said:
49 It must first be recalled in this connection that, so far as concerns

access to social assistance, such as that at issue in the main
proceedings, a Union citizen can claim equal treatment with nationals
of the host Member State under Article 24(1) of Directive 2004/38 only
if his residence in the territory of the host Member State complies
with the conditions of Directive 2004/38 (judgment in Dano,
C-333/13, EU:C:2014:2358, paragraph 69)…
53 … Article 7(3)(c) of Directive 2004/38 provides that if the worker is

in duly recorded involuntary unemployment after completing a fixed-
term employment contract of less than a year or after having become
involuntarily unemployed during the first 12 months and has registered
as a jobseeker with the relevant employment office, he retains the
status of worker for no less than six months. During that period, the
Union citizen concerned retains his right of residence in the host
Member State under Article 7 of Directive 2004/38 and may,
consequently, rely on the principle of equal treatment, laid down in
Article 24(1) of that directive.
54 The Court thus held, in the judgment in Vatsouras and

Koupatantze (C-22/08 and C-23/08, EU:C:2009:344, paragraph 32),
that Union citizens who have retained the status of workers on the basis
of Article 7(3)(c) of Directive 2004/38 have the right to social assistance,
such as the benefits at issue, during that period of at least six months
...
56 As regards the question whether a right of residence under Directive

2004/38 might be established on the basis of Article 14(4)(b) thereof for
Union citizens in the situation of Ms Alimanovic and her daughter
Sonita, that provision stipulates that Union citizens who have entered
the territory of the host Member State in order to seek employment may
not be expelled for as long as they can provide evidence that they are
continuing to seek employment and that they have a genuine chance of
being engaged.
57 Although, according to the referring court, Ms Alimanovic and her

daughter Sonita may rely on that provision to establish a right of
residence even after the expiry of the period referred to in Article 7(3)(c)
of Directive 2004/38, for a period, covered by Article 14(4)(b) thereof,
which entitles them to equal treatment with the nationals of the host
Member State so far as access to social assistance is concerned, it
must nevertheless be observed that, in such a case, the host
Member State may rely on the derogation in Article 24(2) of that

directive in order not to grant that citizen the social assistance
sought.
58 It follows from the express reference in Article 24(2) of Directive

2004/38 to Article 14(4)(b) thereof that the host Member State may
refuse to grant any social assistance to a Union citizen whose right
of residence is based solely on that latter provision …
60 Directive 2004/38, establishing a gradual system as regards the

retention of the status of ‘worker’ which seeks to safeguard the
right of residence and access to social assistance, itself takes into
consideration various factors characterising the individual situation of
each applicant for social assistance and, in particular, the duration of
the exercise of any economic activity.
62 Moreover, as regards the individual assessment for the purposes of

making an overall appraisal of the burden which the grant of a specific
benefit would place on the national system of social assistance at issue
in the main proceedings as a whole, it must be observed that the
assistance awarded to a single applicant can scarcely be described as
an ‘unreasonable burden’ for a Member State, within the meaning of
Article 14(1) of Directive 2004/38. However, while an individual claim
might not place the Member State concerned under an
unreasonable burden, the accumulation of all the individual claims
which would be submitted to it would be bound to do so. [Emphasis
added.]
In García-Nieto and Others (C-299/14, EU:C:2016:114), the Court confirmed

its recent case-law in relation to a dispute between a Spanish family and a
German employment centre which had refused, in accordance with national
law, to grant subsistence benefits for jobseekers and their children to a father
and his son during the first three months of their stay in Germany. The father
and son had arrived in Germany at the end of June 2012, a few months after
the mother and daughter.
At that time, the mother already had regular employment in Germany, for
which—from July—she was compulsorily insured under the social security
system. The Court recalled that, under Directive 2004/38, Union citizens have
the right of residence in another Member State for a period of up to three
months without any conditions or formalities other than the requirement to hold
a valid identity card or passport. Since, during that period, the Member States
cannot require Union citizens to have sufficient means of subsistence and
personal medical cover, the directive allows them, in order to maintain the
financial equilibrium of their social assistance system, to refuse to grant
those persons, other than workers, self-employed persons, or those who
retain that status, any social assistance during the first three months. In
the Court’s view, such a refusal does not presuppose an assessment of
the individual situation of the person concerned:
44 … the host Member State may refuse to grant persons other than
workers, self-employed persons or those who retain that status any
social assistance during the first three months of residence.
45 As the Advocate General observed in point 70 of his Opinion, that

provision is consistent with the objective of maintaining the financial

equilibrium of the social assistance system of the Member States
pursued by Directive 2004/38, as is apparent, in particular, from recital
10 in the preamble to that directive. Since the Member States cannot
require Union citizens to have sufficient means of subsistence and
personal medical cover for a period of residence of a maximum of three
months in their respective territories, it is legitimate not to require those
Member States to be responsible for those citizens during that period.
46 In that context, it must also be stated that, although Directive

2004/38 requires the host Member State to take account of the
individual situation of the person concerned before it adopts an
expulsion measure or finds that the residence of that person is placing
an unreasonable burden on its social assistance system (judgment in
Brey, C-140/12, EU:C:2013:565, paragraphs 64, 69 and 78), no such
individual assessment is necessary in circumstances such as those at
issue in the main proceedings…
50 … as regards the individual assessment for the purposes of making

an overall appraisal of the burden which the grant of a specific benefit
would place on the national system of social assistance in question in
the main proceedings as a whole, it must be recalled that the
assistance awarded to a single applicant can scarcely be
described as an ‘unreasonable burden’ for a Member State, within
the meaning of Article 14(1) of Directive 2004/38, for an individual
claim is not liable to place the Member State concerned under an
unreasonable burden, but the accumulation of all the individual
claims which might be submitted to it would be bound to do so
(see judgment in Alimanovic, C-67/14, EU:C:2015:597, paragraph 62).
51 In those circumstances, Article 24(2) of Directive 2004/38 does not

preclude national legislation, such as that at issue in the main
proceedings, in so far as it excludes nationals of other Member States
who are in a situation such as that referred to in Article 6(1) of that
directive from entitlement to certain ‘special non-contributory cash
benefits’ within the meaning of Article 70(2) of Regulation No 883/2004
… [Emphasis added.]
8.3 Job-seekers
The case-law on job-seekers was previously examined under free movement

of workers.
8.4 Students
Issues have also arisen for students seeking social or educational assistance.
In a number of judgments in the later 1980s the CoJ had held that education
policy and social policy fell within the competence of the Member States. Thus
individuals were not entitled to assistance for university study on the same
basis as Member State nationals. (Lair v. Universitat Hannover (Case 39/86)
and Brown v. Secretary of State for Scotland (Case 197/86).
Would the citizenship provisions make a difference?

Grzelczyk v. CPAS [2001] ECR I 6139 (Case 184/99) involved a French
national (Grzelczyk) studying in Belgium. During first three years of study he
worked part time to support himself. In his fourth (more difficult year) he applied
to the CPAS for a payment of the minimex, a non-contributory minimum
subsistence allowance. Initially the CPAS granted the allowance but withdrew
it in January after a Belgian Minister decided Grzelczyk was not entitled to the
allowance as he was not a Belgian national. It was clear from the referring
court’s analysis that it did not regard Grzelczyk as a worker and the CoJ
proceeded on this basis.
34. It is true that, in paragraph 18 of its judgment in Case197/86

Brown [1988] ECR 3205, the Court held that, at that stage in the
development of Community law, assistance given to students
for maintenance and training fell in principle outside the scope
of the EEC Treaty for the purposes of [now Article 18 TFEU].
35. However, since Brown, the Treaty on European Union has

introduced Citizenship of the European Union into the EC treaty
and added to Title VIII of Part 3 a new chapter 3 devoted to
education and training. There is nothing in the amended text of
the Treaty to suggest that students who are citizens of the Union
when they move to another Member State, to study there, lose
the rights which the Treaty confers on the citizens of the Union.
Furthermore, since Brown, the Council has also adopted
Directive 93/96, which provides that the Member States must
grant right of residence to student national of a Member State
who satisfy certain requirements.
36. The fact that a Union citizen pursues university studies in a

Member State other than the State of which he is a national
cannot, of itself, deprive him of the possibility of relying on the
prohibition of all discrimination on grounds of nationality laid
down in [Article 18 TFEU].
37. As pointed out in paragraph 30 above, in the present case that

prohibition must be read in conjunction with [Article 21(1) TFEU]
of the Treaty, which proclaims the right to move and reside freely
within the territory of the Member States, subject to the
limitations and conditions laid down in this Treaty and by the
measures adopted to give it effect.
The CoJ stated that recourse by a student in circumstances such as those of

Grzelczyk to social assistance could not result in the automatic withdrawal or
non-renewal of a residence permit.
42. That interpretation does not, however, prevent a Member State

from taking the view that a student who has recourse to social
assistance no longer fulfils the conditions of his right of
residence or from taking measures, within the limits imposed by
Community law, either to withdraw his residence permit or not
to renew it.
43. Nevertheless, in no case may such measures become the
automatic consequence of a student who is a national of another
Member State having recourse to the host Member State's
social assistance system.

Bidar v. London Borough of Ealing [2005] ECR I 2119 (Case C-209/03)
concerned a claim by a student for a maintenance grant. Bidar was a French
national living in London with his grandmother. He had attended secondary
school there. He sought a subsidised loan to continue his studies at University
College London. This was refused on the basis he did not satisfy a 3 years’
residence requirement (time in education not taken into account) imposed by
UK national law. He argued that as an EU citizen he was entitled to student
loan on same basis as British national. The CoJ agreed.
42. In view of those developments since the judgments in Lair and

Brown, it must be considered that the situation of a citizen of the
Union who is lawfully resident in another Member State falls
within the scope of application of the Treaty within the meaning
of the first paragraph of [Article 18 TFEU] for the purposes of
obtaining assistance for students, whether in the form of a
subsidised loan or a grant, intended to cover his maintenance
costs.
43. That development of Community law is confirmed by Article 24

of Directive 2004/38, which states in paragraph 1 that all Union
citizens residing in the territory of another Member State on the
basis of that directive are to enjoy equal treatment ‘within the
scope of the Treaty’. In that the Community legislature, in
paragraph 2 of that article, defined the content of paragraph 1 in
more detail, by providing that a Member State may in the case
of persons other than workers, self-employed persons, persons
who retain such status and members of their families restrict the
grant of maintenance aid in the form of grants or loans in respect
of students who have not acquired a right of permanent
residence, it took the view that the grant of such aid is a matter
which, in accordance with Article 24(1), now falls within the
scope of the Treaty.
Martens v. Minister van Onderwijs, Cultuur en Wetenschap I:EU:C:2015:118

(Case C-359/13), was a reference for a preliminary ruling from the Netherlands
with regard to the so-called ‘three-out-of-six-years’ residence rule applicable to
maintenance grants for funding for higher education in circumstances. The
applicant, a Dutch national residing in Belgium, sought to apply for a
maintenance grant to undertake her studies in the Dutch overseas territory of
Curaçao but was refused on grounds that she did not meet said residence
requirement. The CoJ held:
33 … the three-out-of-six-years rule… even though it applies without

distinction to Netherlands nationals and other European Union
citizens, constitutes a restriction on the right to freedom of
movement and residence enjoyed by all citizens of the Union
pursuant to Article 21 TFEU (see, to that effect, judgment in Prinz
and Seeberger, EU:C:2013:524, paragraph 31).
34 The restriction resulting from the legislation at issue in the main

proceedings can be justified in the light of EU law only if it is based
on objective considerations of public interest independent of the
nationality of the persons concerned and if it is proportionate to a
legitimate objective pursued by the provisions of national law. It

follows from the case-law of the Court that a measure is
proportionate if, while appropriate for securing the attainment of the
objective pursued, it does not go beyond what is necessary in order
to attain that objective (judgments in De Cuyper, C-406/04,
EU:C:2006:491, paragraphs 40 and 42; Morgan and Bucher,
EU:C:2007:626, paragraph 33; and Prinz and Seeberger,
EU:C:2013:524, paragraph 33) …
41 The legislation at issue in the main proceedings, inasmuch as it

constitutes a restriction on the freedom of movement and residence
of a citizen of the Union, such as the appellant in the main
proceedings, is … too exclusive because it does not make it
possible to take account of other factors which may connect such a
student to the Member State providing the benefit, such as the
nationality of the student, his schooling, family, employment,
language skills or the existence of other social and economic factors
(see, to that effect, judgment in Prinz and Seeberger,
EU:C:2013:524, paragraph 38). Likewise, as the Advocate General
stated at point 103 of her Opinion, the employment of the family
members on whom the student depends in the Member State
providing the benefit may also be one of the factors to be taken into
account in assessing those links.
42 Furthermore, the potential application of Article 11.5 of the WSF

2000 by the competent Minister, which allows that minister to
derogate from the three-out-of-six-years rule if the application of that
rule would lead to a situation of grave injustice, does not change the
overly exclusive nature of the rule in the circumstances of the case
at issue in the main proceedings. In effect, it appears that that
provision does not guarantee that the other factors which may link
the appellant in the main proceedings with the Member State
providing the benefit are taken into account, and it does not
therefore make it possible to achieve the objective of integration
which is, according to the Netherlands Government, the objective of
the legislation at issue in the main proceedings.
The CoJ concluded that the rule was too exclusive and too arbitrary and not
necessarily representative of the degree of integration of the applicant in the
Member State concerned. Thus it could not be considered to be proportionate
to the objective of integration and legislation such as that governing the rule ran
contrary to Articles 20 and 21 TFEU.
Article 24 of the Citizenship Directive does not in principle exclude students

from right of equal treatment in respect of social assistance provided the
student does not become an unreasonable burden. If the student becomes an
unreasonable burden he may lose his residency entitlements.
Article 24(2) of the Citizenship Directive does permit Member States to refuse
maintenance grants and loans to economically inactive EU citizens, who are
not permanent residents. In Förster v. Hoofddirective van de Informatie Beheer
Groep [2008] ECR I 8507 (Case C-158/07), a Dutch law requiring a five year
residence period before a maintenance grant would be afforded to a student
from another EU Member State did “not go beyond what was necessary to
attain the objective of ensuring that students from other Member States are to

a certain degree integrated into the society of the host Member State.” The
CoJ distinguished Bidar on the basis that the UK rule in that case made it
impossible to qualify for a maintenance loan or grant no matter how integrated
the EU citizen in the host Member State.
In Bressol v. Gouvernement de la communauté française [2010] ECR I 2735

(Case C-73/08), the applicant challenged a Belgian quota system which
restricted access to medical degree programmes. The quota was aimed at
ensuring a certain number of Belgian residents would graduate each year and
to ensure protection of the health system. The CoJ ruled that Articles 18 and
21 TFEU preclude national legislation, such as that at issue in the main
proceedings, which limits the number of students not regarded as resident in
Belgium who may enrol for the first time in medical and paramedical courses at
higher education establishments, unless the referring court, having assessed
all the relevant evidence submitted by the competent authorities, finds that that
legislation is justified in the light of the objective of protection of public health.
In principle, such a quota was prohibited but was capable of being justified.
9. Direct effect of Article 21 TFEU?

Does Article 21(1) TFEU add anything to pre-existing rights? According to
Wyatt and Dashwood (at 665), the CoJ “eventually decided that [Article 21(1)
TFEU] bestowed on the Union citizens a directly effective right, even though
subject to some ‘limitations and conditions’.”
Craig and de Búrca83 note (at 860), “the Treaty provisions on citizenship have
been held to create an autonomous and directly effective right to move and
reside in a Member State, regardless of whether the person concerned falls
within any previously existing EU status category.” The categories of EU status
which conferred residency rights were listed above and Craig and de Búrca are
essentially asking whether Article 21(1) TFEU is directly effective and if so
whether it might benefit persons falling outside those categories.
In Baumbast and R v. Secretary of State for the Home Department [2002] ECR
I 7091 (Case C-413/99), the CoJ held that Article 21 TFEU was directly
effective.
94. ...a citizen of the European Union who no longer enjoys a right
of residence as a migrant worker in the host Member State can
as a citizen of the Union, enjoy there a direct right of residence
based on [Article 21(1) TFEU]. The exercise of that right is
subject to the limitations and conditions referred to in that
provision but the competent authorities and, where necessary
the national courts must ensure that those limitations and
conditions are applied in compliance with the general principles
of [EU] law, and in particular the principle of proportionality.
Craig and de Búrca84 state (at 862–863) that Baumbast:
` clearly established that Article 20](1) TFEU confers a directly effective

right on EU citizens to reside in a host Member State, regardless of
83 6th ed.
84 5th ed.

whether they are employed or self-employed. And while the main
overall impact of Article 20(1) was to move the rights of residence of
such citizens from a legislative footing to a Treaty footing, this move
evidently had some significant legal consequences, since the [CoJ]
ruled that the ‘limitations and conditions’ accepted by the Treaty on the
rights of movement and residence must be interpreted and applied in a
proportionate way. On the facts of the case, this meant that to read the
requirement of ‘sickness insurance’ in the Directive restrictively would
undermine the right of residence conferred directly by the Treaty. More
generally, any legislative or other conditions or limitations on the rights
of residence and movement of EU citizens must henceforth be
interpreted so as to avoid disproportionate interference with the rights.
Article 21 TFEU was also considered in Kunqian Catherine Zhu, Man Lavette
Chen v. Secretary of State for the Home Department [2004] ECR I 9925 (Case
C-200/02). The CoJ held:
26. As regards the right to reside in the territory of the Member

States provided for in[Article 21(1) TFEU], it must be observed
that that right is granted directly to every citizen of the Union by
a clear and precise provision of the Treaty. Purely as a national
of a Member State, and therefore as a citizen of the Union,
Catherine is entitled to rely on [Article 21(1) TFEU]. That right of
citizens of the Union to reside in another Member State is
recognised subject to the limitations and conditions imposed by
the Treaty and by the measures adopted to give it effect (see, in
particular, Baumbast and R, paragraphs 84 and 85).
27. With regard to those limitations and conditions, Article 1(1) of

Directive 90/364 provides that the Member States may require
that the nationals of a Member State who wish to benefit from
the right to reside in their territory and the members of their
families be covered by sickness insurance in respect of all risks
in the host Member State and have sufficient resources to avoid
becoming a burden on the social assistance system of the host
Member State during their period of residence.
28. It is clear from the order for reference that Catherine has both
sickness insurance and sufficient resources, provided by her
mother, for her not to become a burden on the social assistance
system of the host Member State ....
47. The answer to be given to the national court must therefore be

that, in circumstances like those of the main proceedings,
[Article 21 TFEU] and Directive 90/364 confer on a young minor
who is a national of a Member State, is covered by appropriate
sickness insurance and is in the care of a parent who is a third-
country national having sufficient resources for that minor not to
become a burden on the public finances of the host Member
State, a right to reside for an indefinite period in that State. In
such circumstances, those same provisions allow a parent who
is that minor’s primary carer to reside with the child in the host
Member State.

The CoJ rejected an argument that Mrs. Chen could not rely on EU law as she
had abused EU law by moving to Northern Ireland for the purpose of her child
obtaining Irish nationality. The CoJ stated that under international law it is for
each State to lay down the conditions for acquisition and loss of nationality. At
that time, prior to a referendum in this jurisdiction on citizenship, any child born
on the island of Ireland acquired Irish nationality.85 The CoJ stated (at [39]):
Moreover, it is not permissible for a Member State to restrict the effects

of the grant of nationality of another Member State by imposing an
additional condition for the recognition of that nationality with a view to
the exercise of the fundamental freedoms provided for in the Treaty.
Mrs. Chen could not derive a right of residence as a dependent relative. The
CoJ ruled (at [45]), however, that a refusal to grant a right of residence to the
parent, carer of the EU citizen and enjoying sufficient resources and health
insurance “would deprive the child’s right of residence of any useful effect.”
Article 21 [TFEU] does create a new and directly effective right, and that
while the most obviously novel element is the conferral of fundamental
Treaty status on the right of non-economically active persons to move
and reside, this is not a purely symbolic change. The case-law indicates
that the limits which States may legitimately impose on the rights of
movement and residence of non-economically active persons must be
interpreted in light of their status as citizens, and that they must be
proportionate.
10. Do Articles 20 and 21 TFEU impact on “wholly internal

situations”?
In the context of free movement rights for the economically active and other
categories of persons who pre-citizenship had the right to move and reside, the
CoJ held in a number of cases that EU rights could not be exercised in a “wholly
internal situation.”
R v. Saunders [1979] ECR 1129 (Case 175/78), arose in the context of the free
movement of workers provision of the Treaty, Article 45 TFEU. That provision
does not apply in a wholly internal situation, i.e. wholly internal to a Member
State. The facts involved criminal allegations of theft were the accused had
agreed to travel to Northern Ireland and not to return to England or Wales within
three years. The CoJ held:
The application by an authority or court of a Member State to a worker

who is a national of that same State of measures which deprive or
restrict the freedom of movement of the person concerned within the
territory of that state as a penal measure provided for by national law
85 The Twenty Seventh Amendment to the Irish Constitution in 2004. Article 9(2) of the
Constitution provides, “1° Notwithstanding any other provision of this Constitution, a person
born in the island of Ireland, which includes its islands and seas, who does not have, at the time
of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish
citizen is not entitled to Irish citizenship or nationality, unless provided for by law.”
2° This section shall not apply to persons born before the date of the enactment of this section.
86 6th ed.

by reason of acts committed within the territory of that State is a wholly
domestic situation which falls outside the scope of the rules contained
in the EEC Treaty on freedom of movement for workers.
There are situations where a worker can use Article 45 TFEU against his or her
own Member States, where a worker has been employed and resided in
another Member State, the worker may then claim to have been discriminated
against on his or her return; F.C. Terhoeve v. Inspecteur van de
Belastingdienstd Particulieren [1999] ECR I 345 (Case C-18/95).
In Morson and Jhanjan v. Netherlands [1982] ECR 3723 (Cases 35 and 36/82),
Surinamese nationals claimed the right to stay in the Netherlands with their
Dutch national son who was working there. The CoJ considered that it was a
“wholly internal situation” as the Dutch national son had not exercised his
freedom to move and work in another Member State. The matter was governed
by Dutch law and not by EU law. The EU rights of family members did not arise
in a case with no cross border element.
In a number of cases the CoJ has held that the Treaty provisions on citizenship
have conferred rights in situations where individuals have never left the territory
of their home State. in Garcia Avello v. Belgium [2003] ECR I-11613 (Case C-
148/02), the children had dual Belgian-Spanish nationality and were resident in
Belgium. In Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State
for the Home Department [2004] ECR I 9925 (Case C-200/02), the CoJ held
that it was not a wholly internal situation as although Catherine had never left
the UK she had Irish nationality.
These two cases involved the individual holding the nationality of another
Member State.
Ruiz-Zambrano v. Office national de l’emploi (ONEm) [2011] ECR I 1177 (Case

C-34/09)87 involved Belgian children residing in Belgium. Their parents were
Columbian nationals who had fled Columbia with their eldest son after he had
been kidnapped. The Zambrano parents were refused refugee status but it
was accepted by the Belgian authorities that they could not be returned to
Columbia on the basis of the non-refoulement principle. Mr Zambrano had
worked and paid taxes in Belgium. He was not entitled to work and when
investigated and found to be working, he was prevented from working. He was
refused unemployment benefit as his work was not completed in accordance
with the legislation governing foreigners’ residence and employment of foreign
workers.
A series of questions were referred to the CoJ by way of preliminary reference.

Eight Member States intervened all arguing that as the two children were
Belgian nationals who had never left the territory of their Member State and that
the situation did not therefore come within the scope of EU law.
Mr Ruiz Zambrano argued in response that the reliance by his children on the
provisions relating to European Union citizenship did not presuppose that they
must move outside the Member State in question and that he, in his capacity
as a family member, was entitled to a right of residence and was exempt from
having to obtain a work permit in that Member State. The CoJ stated that
87The impact of Ruiz-Zambrano in this jurisdiction is evident from the dicta of Clarke J in OO
and DO v. The Minister for Justice Equality and Law Reform [2012] IESC 49, at [10.9].

Article 20 TFEU conferred the status of EU citizen on every individual having
nationality of an EU Member State. It reiterated the idea that EU citizenship is
destined to be the fundamental status of the nationals of the Member States.
The CoJ held:
42. In those circumstances, Article 20 TFEU precludes national

measures which have the effect of depriving citizens of the
Union of the genuine enjoyment of the substance of the rights
conferred by virtue of their status as citizens of the Union (see,
to that effect, Rottmann, paragraph 42).
43. A refusal to grant a right of residence to a third country national

with dependent minor children in the Member State where those
children are nationals and reside, and also a refusal to grant
such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation

where those children, citizens of the Union, would have to leave
the territory of the Union in order to accompany their parents.
Similarly, if a work permit were not granted to such a person, he
would risk not having sufficient resources to provide for himself
and his family, which would also result in the children, citizens
of the Union, having to leave the territory of the Union. In those
circumstances, those citizens of the Union would, as a result, be
unable to exercise the substance of the rights conferred on them
by virtue of their status as citizens of the Union. 45. Accordingly,
the answer to the questions referred is that Article 20 TFEU is
to be interpreted as meaning that it precludes a Member State
from refusing a third country national upon whom his minor
children, who are European Union citizens, are dependent, a
right of residence in the Member State of residence and
nationality of those children, and from refusing to grant a work
permit to that third country national, in so far as such decisions
deprive those children of the genuine enjoyment of the
substance of the rights attaching to the status of European
Union citizen. [Emphasis added.]
The CoJ allowed reliance on Article 20 TFEU in a wholly internal situation,

although the CoJ does not expressly state this. However, it must be noted that
the judgment states that the children would have to leave the territory of the EU
and that they, EU citizens, would thereby be deprived of the enjoyment of the
substance of their EU rights.
In McCarthy v. Home Secretary [2011] ECR I 03375 (Case C-434/09), involved

Ms McCarthy, a dual British-Irish national, who was born and had always
resided in the UK. She was in receipt of social welfare benefits. She married
a Jamaican national. In 2004 relying on her Irish passport she sought
residence permits and documents for herself and her husband. Her application
was so that her husband would acquire derived EU rights as the spouse on an
EU national. Her application was refused on the basis that she was not a
qualifying person and her husband’s application was also refused on the basis
that he was not the spouse of a “qualifying person.”
The CoJ held that Ms. McCarthy was not a beneficiary within the meaning of
Article 3(1) of the Citizenship Directive. She had not exercised her right to move

and reside in another Member State. The CoJ stated (at [40]), “[t]hat finding
cannot be influenced by the fact that a citizen concerned is also a national of a
Member State other than that in which he resides.”
The CoJ also determined that in those circumstances her spouse was not
covered by Article 3(1) of the Directive either. The CoJ the considered whether
Article 21 TFEU was applicable to an EU citizen who had never exercised his
right of free movement, who had always resided in the EU Member State of
which he was a national and who also had nationality of another Member State.
The CoJ considered the fact that she had not exercised her free movement
rights was insufficient to conclude that it was a wholly internal situation. In
determining that Article 21 TFEU did not apply to a citizen in Ms McCarthy’s
situation, the CoJ reasoned:
48. As a national of at least one Member State, a person such as

Mrs McCarthy enjoys the status of a Union citizen under Article
20(1) TFEU and may therefore rely on the rights pertaining to
that status, including against his Member State of origin, in
particular the right conferred by Article 21 TFEU to move and
reside freely within the territory of the Member States (see Case
C-33/07 Jipa [2008] ECR I-5157, paragraph 17 and case-law
cited).
49. However, no element of the situation of Mrs McCarthy, as

described by the national court, indicates that the national
measure at issue in the main proceedings has the effect of
depriving her of the genuine enjoyment of the substance of the
rights associated with her status as a Union citizen, or of
impeding the exercise of her right to move and reside freely
within the territory of the Member States, in accordance with
Article 21 TFEU. Indeed, the failure by the authorities of the
United Kingdom to take into account the Irish nationality of Mrs
McCarthy for the purposes of granting her a right of residence
in the United Kingdom in no way affects her in her right to move
and reside freely within the territory of the Member States, or
any other right conferred on her by virtue of her status as a
Union citizen.
50. In that regard, by contrast with the case of Ruiz Zambrano, the
national measure at issue in the main proceedings in the present
case does not have the effect of obliging Mrs McCarthy to leave
the territory of the European Union. Indeed, as is clear from
paragraph 29 of the present judgment, Mrs McCarthy enjoys,
under a principle of international law, an unconditional right of
residence in the United Kingdom since she is a national of the
United Kingdom.
The CoJ in McCarthy distinguished Ruiz-Zambrano and García Avello on the

basis that the national measures in those cases had the effect of depriving the
EU citizen of the genuine enjoyment of the substance of her EU rights. The
CoJ considered the matter to concern a wholly internal situation stating:
55. In those circumstances, the situation of a person such as Mrs

McCarthy has no factor linking it with any of the situations

governed by European Union law and the situation is confined
in all relevant respects within a single Member State.
The crucial factor determining whether the circumstances in McCarthy

and those in Ruiz Zambrano were to be characterised as a wholly
internal situation seems to hinge on a relatively slight factual distinction:
namely the perceived difference in the degree of dependence and
vulnerability of the EU citizen family member. The fact that the family
member for whom the EU citizen was seeking a derivative residence
permit in that case was an adult spouse as compared with the parent of
dependent minor children in Ruiz Zambrano, seems to have influenced
the Court in reaching a different conclusion in the two cases, even
though the right to family life of the EU citizen would be significantly
affected by the deportation in both cases.
In Dereci v. Bundesministerium für Inneres [2011] ECR I 11315 (Case

C-256/11), 15 November 2011, the CoJ considered whether EU citizenship law
had to be interpreted as precluding a Member State from granting residency to
a third country national, who wished to reside with an EU citizen family member,
resident in that Member State and a national of that Member State who has
never exercised his right to free movement and who was not maintained by that
third country national. Dereci involved a number of applicants who were third
country national family members of Austrian citizens residing in Austria. The
Austrian nationals had never exercised their free movement rights and they
were not maintained by the applicants. The CoJ considered that Article 3(1) of
the Citizenship Directive did not apply as the EU citizens had not exercised
their free movement rights. The CoJ then considered the applicability of the
Treaty provisions.
66. … the criterion relating to the denial of the genuine enjoyment

of the substance of the rights conferred by virtue of European
Union citizen status refers to situations in which the Union
citizen has, in fact, to leave not only the territory of the Member
State of which he is a national but also the territory of the Union
as a whole.
67. That criterion is specific in character inasmuch as it relates to

situations in which, although subordinate legislation on the right
of residence of third country nationals is not applicable, a right
of residence may not, exceptionally, be refused to a third country
national, who is a family member of a Member State national,
as the effectiveness of Union citizenship enjoyed by that
national would otherwise be undermined.
68. Consequently, the mere fact that it might appear desirable to a

national of a Member State, for economic reasons or in order to
keep his family together in the territory of the Union, for the
members of his family who do not have the nationality of a
Member State to be able to reside with him in the territory of the
Union, is not sufficient in itself to support the view that the Union
88 6th ed.

citizen will be forced to leave Union territory if such a right is not
granted.
The CoJ held:
74. In the light of the foregoing observations the answer... is that

European Union law and, in particular, its provisions on
citizenship of the Union, must be interpreted as meaning that it
does not preclude a Member State from refusing to allow a third
country national to reside on its territory, where that third country
national wishes to reside with a member of his family who is a
citizen of the Union residing in the Member State of which he
has nationality, who has never exercised his right to freedom of
movement, provided that such refusal does not lead, for the
Union citizen concerned, to the denial of the genuine enjoyment
of the substance of the rights conferred by virtue of his status as
a citizen of the Union, which is a matter for the referring court to
verify.
The Dereci judgment confirms McCarthy in that the citizenship provisions can
be relied on by an EU citizen who has not exercised his free movement rights
to the extent of ensuring that genuine enjoyment of the substance of the rights
conferred by virtue of his status as a citizen of the EU are not denied.
O, S and L v. Maahanmuuttoviras [2012] ECR I nyr, judgment of 6th December

2012 (Joined Cases C-356/11 and 357/11) were concerned with reconstituted
families. The facts involved Finnish children living with their third country
national mothers in Finland and whose mothers had been afforded sole
custody. There was a change in the composition of the families following the
mothers’ remarriage to third country nationals and the birth of additional
children who were also third country nationals. The new spouses were refused
residence rights on the grounds of lack of sufficient resources. It was submitted
in the cases that because the new husbands had been refused residence
permits it was possible that the Finnish children together with their third country
national mothers and third country national half-siblings would be required to
leave the EU in order to be able to live as a family.
The CoJ stated that the Finnish children were not beneficiaries of the
Citizenship Directive as they had at all times resided in Finland and had not
exercised their free movement rights. The CoJ then referred to the decision in
Ruiz Zambrano and repeated (at paragraph 45) that Article 20 TFEU precludes
national measures, including refusals to grant rights of residence to family
members of a Union citizen, which have the effect of denying Union citizens
the genuine enjoyment of the substance of the rights conferred by their status,
the principle stated at paragraph 42 of the Ruiz Zambrano judgment.
The CoJ explained:
46 With respect, finally, to the right of residence of a person who is a

third country national in the Member State of residence of his minor
children, nationals of that Member State, who are dependent on him
and of whom he and his spouse have joint custody, the Court has held
that the refusal to grant a right of residence would have the
consequence that those children, who are citizens of the Union, would
have to leave the territory of the Union in order to accompany their
parents, and that those citizens of the Union would, in fact, be unable

to exercise the substance of the rights conferred by their status (Ruiz
Zambrano, paragraphs 43 and 44).
47 The criterion of the denial of the genuine enjoyment of the substance

of the rights conferred by the status of citizen of the Union referred, in
the Ruiz Zambrano and Dereci and Others cases, to situations
characterised by the circumstance that the Union citizen had, in fact, to
leave not only the territory of the Member State of which he was a
national but also that of the European Union as a whole.
48 That criterion is therefore specific in character inasmuch as it relates

to situations in which a right of residence, exceptionally, may not be
refused to a third country national who is a family member of a national
of a Member State, as the effectiveness of the Union citizenship
enjoyed by that national would otherwise be undermined (Dereci and
Others, paragraph 67).
It was for the national referring court to determine whether the refusal of
residence permits to the new husbands would amount to a denial of the genuine
enjoyment of the EU citizenship rights of the Finnish children (para. 49) and the
CoJ gave guidance to the national court as regards the factors to be taken into
account in that regard:
51 For the purpose of examining whether the Union citizens concerned

would be unable, in fact, to exercise the substance of the rights
conferred by their status, the question of the custody of the
sponsors’ children and the fact that the children are part of
reconstituted families are also relevant. First, since Ms S and Ms L
have sole custody of the Union citizens concerned who are minors, a
decision by them to leave the territory of the Member State of which
those children are nationals, in order to preserve the family unit, would
have the effect of depriving those Union citizens of all contact with their
biological fathers, should such contact have been maintained up to the
present. Secondly, any decision to stay in the territory of that
Member State in order to preserve the relationship, if any, of the
Union citizens who are minors with their biological fathers would
have the effect of harming the relationship of the other children,
who are third country nationals, with their biological fathers.
52 However, the mere fact that it might appear desirable, for

economic reasons or in order to preserve the family unit in the
territory of the Union, for members of a family consisting of third
country nationals and a Union citizen who is a minor to be able to
reside with that citizen in the territory of the Union in the Member
State of which he is a national is not sufficient in itself to support
the view that the Union citizen would be forced to leave the territory of
the Union if such a right of residence were not granted (see, to that
effect, Dereci and Others, paragraph 68).
53 In connection with the assessment, mentioned in paragraph 49

above, which it is for the referring court to carry out, that court must
examine all the circumstances of the case in order to determine
whether, in fact, the decisions refusing residence permits at issue in the

main proceedings are liable to undermine the effectiveness of the Union
citizenship enjoyed by the Union citizens concerned.
54 Whether the person for whom a right of residence is sought on

the basis of family reunification lives together with the sponsor
and the other family members is not decisive in that assessment,
since it cannot be ruled out that some family members who are the
subject of an application for family reunification may arrive in the
Member State concerned separately from the rest of the family.
55 It should also be noted that, contrary to the submissions of the

German and Italian Governments, while the principles stated in the Ruiz
Zambrano judgment apply only in exceptional circumstances, it does
not follow from the Court’s case-law that their application is
confined to situations in which there is a blood relationship
between the third country national for whom a right of residence
is sought and the Union citizen who is a minor from whom that
right of residence might be derived.
56 On the other hand, both the permanent right of residence of the

mothers of the Union citizens concerned who are minors and the
fact that the third country nationals for whom a right of residence
is sought are not persons on whom those citizens are legally,
financially or emotionally dependent must be taken into
consideration when examining the question whether, as a result of
the refusal of a right of residence, those citizens would be unable
to exercise the substance of the rights conferred by their status.
As the Advocate General observes in point 44 of his Opinion, it is the
relationship of dependency between the Union citizen who is a minor
and the third country national who is refused a right of residence that is
liable to jeopardise the effectiveness of Union citizenship, since it is that
dependency that would lead to the Union citizen being obliged, in fact,
to leave not only the territory of the Member State of which he is a
national but also that of the European Union as a whole, as a
consequence of such a refusal (see Ruiz Zambrano, paragraphs 43 and
45, and Dereci and Others, paragraphs 65 to 67).
57 Subject to the verification which it is for the referring court to carry

out, the information available to the Court appears to suggest that there
might be no such dependency in the cases in the main
proceedings.
The CoJ concluded:
58 In the light of the foregoing, it must be stated that Article 20 TFEU

must be interpreted as not precluding a Member State from refusing
to grant a third country national a residence permit on the basis of family
reunification where that national seeks to reside with his spouse, who
is also a third country national and resides lawfully in that Member State
and is the mother of a child from a previous marriage who is a Union
citizen, and with the child of their own marriage, who is also a third
country national, provided that such a refusal does not entail, for the
Union citizen concerned, the denial of the genuine enjoyment of the
substance of the rights conferred by the status of citizen of the Union,
that being for the referring court to ascertain.

While the CoJ in O, S and L v. Maahanmuuttoviras concluded that a refusal of
residence permits to the new third country national husbands was not
precluded by EU law unless it resulted in the denial of the genuine enjoyment
of the EU citizen’s rights, the Court went onto state that if such a denial did not
follow from the refusal, the national court should also consider whether there
were other reasons why the third country national husbands could not be
refused residence. One of the other criteria which it would be necessary for
the national court to consider is the protection of family life.
From the cases decided subsequent to Ruiz Zambrano (and including cases
not discussed in this manual) it seems that the CoJ is willing to interfere in
internal situations only where the national rules would deprive the EU citizen
rights of any meaningful effect. From the case-law determined so far it appears
that the CoJ considers that an EU citizen is deprived of the genuine substance
of their EU Treaty rights in circumstances where the individual would be
required not just to leave the territory of his or her Member State but rather the
territory of the EU. The CoJ accepted in Ruiz Zambrano that the minor children,
dependent on their non-national parents, would have been obliged to leave the
EU if their parents were not able to support them in Belgium.
Minister voor Immigratie, Integratie en Asiel v. O, and v S, [2014] ECR I nyr,

judgment of 12 March 2014 (Cases C-456/12 & C-457/12) concerned two
different factual circumstances of third country national family members and
whether they had derived rights to reside in the home State of their EU citizen
spouses. In both cases, the third country national family members had resided
for periods of time in host States and their spouses had spent some time there
with them. In the O case this consisted of an initial period of two months’ joint
residence in Spain with the Dutch spouse before returning to the Netherlands
to work and then spending holidays with her spouse. In the B case, Mr B had
resided for a period in the Netherlands with his Dutch wife, then resided in
Belgium where she spent weekends with him. The CoJ held that third country
national did not derive a right from the Citizenship Directive to reside in the
home State of an EU citizen family member. The CoJ then examined the
question of whether such a right might be derived directly from Article 21 TFEU.
The CoJ determined that if an EU citizen had resided in a host State in
accordance with Article 7 or Article 16 of the Citizenship Directive, and had
created or strengthened family life with a third country national during genuine
residence, that on return to his home State, the provisions of the Citizenship
Directive applied by analogy to the third country national family member. The
Court of Justice also held that short periods of residence such as weekends or
holidays spent in a host State, even if considered together, fell within the scope
of Article 6 of the Directive and did not satisfy Article 7 or 16 of the Directive.
In Mr B’s case, he became a family member after his wife’s period of residence
in the host country in circumstances where the marriage occurred after her
period of residence; he was not therefore entitled to benefit from Article 21
TFEU.
The Court’s jurisprudence in the aftermath of Ruiz Zambrano was once again
re-examined by the Grand Chamber in Joined cases CS and Rendón Marín
ECLI:EU:C:2016:674 and ECLI:EU:C:2016:675 (Cases C-304/14 and C-
165/14).
CS concerned a Moroccan national, who resided in the UK together with her

British national son. In 2012, she was convicted of a criminal offence and
sentenced to 12 months’ imprisonment. Following her conviction, she was

notified she was to be deported and her subsequent application for asylum was
denied. On appeal, the Immigration and Asylum Chamber found that her
deportation would violate her child's rights under Article 20 TFEU. The Home
Secretary was granted permission to appeal this decision before the Upper
Tribunal, which asked the CJEU, under which circumstances the expulsion of
a third-country national carer of a Union citizen could be permitted under EU
law and whether Article 27 and 28 of the Directive 2004/38 EC had any effect
in this case.
The Court restated (at [26]) in Ruiz Zambrano that Article 20 TFEU “…
precludes national measures which have the effect of depriving Union citizens
of the genuine enjoyment of the substance of the rights conferred by virtue of
their status as Union citizens.” It further held (at [29]):
a right of residence must … be granted to a third-country national who

is a family member of [a minor Union citizen] since the effectiveness of
citizenship of the Union would otherwise be undermined, if, as a
consequence of refusal of such a right that citizen would be obliged in
practice to leave the territory of the European Union as whole.
CS had a derived right of residence under Article 20 TFEU in her son's home
Member State.
In addition, the Court held that, as a general rule, such a derived residence right
can be derogated for reasons of public policy or public security:
40 … where the exclusion decision is founded on the existence of a

genuine, present and sufficiently serious threat to the requirements of
public policy or of public security … that decision could be consistent
with EU law.
However, a deportation decision cannot be made “automatically on the basis

solely of the criminal record of the person concerned” (at [41]).
Thus, UK legislation obliging the Home Secretary to make a deportation order

of any non-national who is sentenced to a period of imprisonment of 12 months
or more, establishes “a systematic and automatic link between the criminal
conviction of a person … and the expulsion measure” (at [44]) and therefore
violates EU law.
It is for the national courts to weigh up “the personal conduct of the individual
concerned, the length and legality of his residence on the territory of the
Member State concerned, the nature and gravity of the offence committed, the
extent to which the person concerned is currently a danger to society, the age
of the child at issue and his state of health, as well as his economic and family
situation” (at [42]).
Furthermore, derogations for reasons of “public policy” or “public security” must

be interpreted strictly and decisions are subject to review by the EU institutions
(at [37]).
Finally, any assessment of the individual situation must take account of the
principle of proportionality and the rights protected in the Charter of
Fundamental Rights of the European Union especially Article 7 on the right to

respect of private and family life and Article 24(2) on the obligation of
consideration of the child's best interests (at [48] and [49]).
Rendón Marín concerned a Colombian national father, who lived in Spain

together with his Spanish national son and his Polish national daughter. His
application for a residence permit was rejected due to his criminal record.
Crucial difference here was Mr Rendón Marín had a Union citizen daughter who
lived in a host Member State and a son who lived in his home Member State.
There thus was a cross-border element in the situation of his daughter, but not
in that of his son.
As regards his son, a Spanish national in Spain the judgment of the court is
broadly similar to CS. In relation to his daughter, the Court mooted the
possibility of moving to Poland, as this is the Member State of nationality of Mr
Rendón Marín's daughter.
Whilst the Court noted the applicant's objection that the family had no ties to
Poland, it did not go into this discussion, but simply held (at [79]), “it is for the
referring court to check whether . . . the parent who is the sole carer of his
children, may in fact enjoy the derived right to go with them to Poland and reside
with them there”. The Court therefore did not deny that moving to Poland could
be a possible solution in case of the father's deportation from Spain.
As for the legal status of the daughter, the Court held that, as a Polish national
and Union citizen, she could rely on Article 21 TFEU and the Directive 2004/38
to grant her a right of residence in Spain.
Furthermore, the Court stated that if the daughter fulfils the conditions laid down
under Article 7(1) Directive 2004/38 (i.e. having sufficient resources and
comprehensive health insurance) then the derived right of residence of Mr
Rendón Marín, her father and sole caretaker, cannot be refused. It said (at
[53]):
… Mr Rendón Marín’s daughter fulfils the conditions laid down in Article

7(1) of Directive 2004/38 for having a right to reside in Spain on the
basis of Article 21 TFEU and of that directive, the latter have to be
interpreted as precluding, in principle, Mr Rendón Marín being refused
a derived right to reside on the territory of that Member State.
Whilst this derived right of residence can be limited for reasons of public policy
or public security (para 57), EU law precludes such limitations on "grounds of
a general, preventive nature" (para 61). Instead, it is for the national courts to
do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras
59-66). Derogations from derived rights of residence on the basis of Article 20
TFEU and Article 21 TFEU thus presumably have to withstand the same test.
The Court of Justice reaffirmed the Ruiz Zambrano line of case-law in Chavez
Vilchez v. Raad van bestuur van de Sociale verzekeringsbank and Others (C-
133/15) (ECLI:EU:C:2017:354). Ms. Chavez Vilchez, a Venezuelan national,
entered the Netherlands on a tourist visa. Her relationship with a Dutch national
led to the birth of a child who had Dutch nationality. The parents and child lived
in Germany until June 2011, when Ms. Chavez Vilchez and her child were
compelled to leave the family home. Since then, Ms. Chavez Vilchez was the
sole carer for her child and as the child’s father did not contribute to the child’s
support or upbringing, she made applications for social assistance and child
benefit which were rejected by the Dutch authorities. Proceedings were brought

regarding refusal of the Dutch authorities to grant social assistance and child
benefit, and the Centrale Raad van Beroep (Higher Administrative Court,
Netherlands) decided to refer the following questions to the Court of Justice:
i. Under Article 20 TFEU, could a third-country national mother derive a

residence right in the home Member State of an EU citizen minor, if the
mother was the primary carer of that minor?
ii. What type of relationship between mother and child would compel the
child to leave the EU if the mother was forced to leave? Did it matter
that it could not be excluded that the father, an EU citizen, might be able
to take care of the child?
iii. Did the third country national have to make a plausible case that the
other parent is unable or unwilling to care for the child?
In respect of the first two questions, endorsing the Zambrano test, the Court
held:
65 In this case, if it were to be established… that a refusal to allow

residence to the third-country nationals at issue in the main proceedings
would have the effect that the parties concerned would have to leave
the territory of the European Union, the consequence might be a
restriction on the rights conferred on their children by their status as
Union citizens, in particular the right of residence, since those children
might be compelled to accompany their mothers and therefore to leave
the territory of the European Union, as a whole. In the event that the
mothers were obliged to leave the territory of the European Union, their
children would thus be deprived of genuine enjoyment of the
substance of the rights conferred on them by their status as Union
citizens (see, to that effect, judgment of 13 September 2016, Rendón
Marín, C-165/14, EU:C:2016:675, paragraph 78 and the case-law cited)
… [Emphasis added.]
The Court also listed factors that might be considered by the competent
national authorities in determining that the above-mentioned test is met:-
70. In this case, in order to assess the risk that a particular child, who is
a Union citizen, might be compelled to leave the territory of the
European Union and thereby be deprived of the genuine enjoyment of
the substance of the rights conferred on him by Article 20 TFEU if the
child’s third-country national parent were to be refused a right of
residence in the Member State concerned, it is important to
determine, in each case at issue in the main proceedings, which
parent is the primary carer of the child and whether there is in fact
a relationship of dependency between the child and the third-
country national parent. As part of that assessment, the competent
authorities must take account of the right to respect for family life, as
stated in Article 7 of the Charter of Fundamental Rights of the
European Union, that article requiring to be read in conjunction
with the obligation to take into consideration the best interests of
the child, recognised in Article 24(2) of that charter.
71 For the purposes of such an assessment, the fact that the other
parent, a Union citizen, is actually able and willing to assume sole
responsibility for the primary day-to-day care of the child is a

relevant factor, but it is not in itself a sufficient ground for a
conclusion that there is not, between the third-country national parent
and the child, such a relationship of dependency that the child would be
compelled to leave the territory of the European Union if a right of
residence were refused to that third-country national. In reaching such
a conclusion, account must be taken, in the best interests of the
child concerned, of all the specific circumstances, including the
age of the child, the child’s physical and emotional development,
the extent of his emotional ties both to the Union citizen parent and
to the third-country national parent, and the risks which separation
from the latter might entail for that child’s equilibrium. [Emphasis
added.]
As to the third question, namely, the extent to which the third country national
had to make out a plausible case that the other parent was unable or unwilling
to care for the child, the Court stated:
78. … Article 20 TFEU must be interpreted as not precluding a Member

State from providing that the right of residence in its territory of a third-
country national, who is a parent of a minor child that is a national of
that Member State and who is responsible for the primary day-to-day
care of that child, is subject to the requirement that the third-country
national must provide evidence to prove that a refusal of a right of
residence to the third-country national parent would deprive the
child of the genuine enjoyment of the substance of the rights
pertaining to the child’s status as a Union citizen, by obliging the
child to leave the territory of the European Union, as a whole. It is
however for the competent authorities of the Member State concerned
to undertake, on the basis of the evidence provided by the third-country
national, the necessary enquiries in order to be able to assess, in the
light of all the specific circumstances, whether a refusal would have
such consequences. [Emphasis added.]
11. Political Rights of Citizenship

Articles 22-25 TFEU89 confer rights on citizens.
Article 22 TFEU90provides:
1. Every citizen of the Union residing in a Member State of which

he is not a national shall have the right to vote and to stand as
a candidate at municipal elections in the Member State in which
he resides, under the same conditions as nationals of that State.
This right shall be exercised subject to detailed arrangements
adopted by the Council, acting unanimously in accordance with
a special legislative procedure and after consulting the
European Parliament; these arrangements may provide for
derogations where warranted by problems specific to a Member
State.


2. Without prejudice to Article 223(1) and to the provisions adopted
for its implementation, every citizen of the Union residing in a
Member State of which he is not a national shall have the right
to vote and to stand as a candidate in elections to the European
Parliament in the Member State in which he resides, under the
same conditions as nationals of that State. This right shall be
exercised subject to detailed arrangements adopted by the
Council, acting unanimously in accordance with a special
legislative procedure and after consulting the European
Parliament; these arrangements may provide for derogations
where warranted by problems specific to a Member State.
Article 23 TFEU91provides:
Every citizen of the Union shall, in the territory of a third country in which
the Member State of which he 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 State.
Member States shall adopt the necessary provisions and start the
international negotiations required to secure this protection.
The Council, acting in accordance with a special legislative procedure

and after consulting the European Parliament, may adopt directives
establishing the coordination and cooperation measures necessary to
facilitate such protection.
The European Parliament and the Council, acting by means of

regulations in accordance with the ordinary legislative procedure, shall
adopt the provisions for the procedures and conditions required for a
citizens’ initiative within the meaning of Article 11 of the Treaty on
European Union, including the minimum number of Member States from
which such citizens must come.
Every citizen of the Union shall have the right to petition the European
Parliament in accordance with Article 227.
Every citizen of the Union may apply to the Ombudsman established

in accordance with Article 228.
Every citizen of the Union may write to any of the institutions or bodies
referred to in this Article or in Article 13 of the Treaty on European Union
in one of the languages mentioned in Article 55(1) of the Treaty on
European Union and have an answer in the same language.
One of the innovations of the Lisbon Treaty is the citizens’ initiative in Article
24 TFEU, i.e. the possibility of a petition by citizens of the EU.
92 Ex Article 21 EC

Article 25 TFEU (ex Article 22 EC) provides: -
The Commission shall report to the European Parliament, to the Council

and to the Economic and Social Committee every three years on the
application of the provisions of this Part. This report shall take account
of the development of the Union.
On this basis, and without prejudice to the other provisions of the

Treaties, the Council, acting unanimously in accordance with a special
legislative procedure and after obtaining the consent of the European
Parliament, may adopt provisions to strengthen or to add to the rights
listed in Article 20(2). These provisions shall enter into force after their
approval by the Member States in accordance with their respective
constitutional requirements.

of Ireland, 2008), chapter 2
chapter 9
2011), chapter 17
o Nic Shuibhne, “(Some of) The Kids Are All Right”, 49 CMLRev 349–380
o Stanley, “The Evolution and Elusiveness of EU Citizenship: The Court
of Justice Decision in McCarthy” The Researcher, July 2011.
o Shaw, “Citizenship: Contrasting Dynamics at the Interface of Integration
and Constitutionalism” in Craig and De Búrca (eds.), The Evolution of
EU Law (2nd ed., 2011)
o Peers et al, The EU Citizenship Directive: A Commentary (Oxford
University Press, 2014)
o Dougan et al (eds.), Empowerment and Disempowerment of the
European Citizen (Oxford, Hart Publishing, 2012)

Chapter 15
Freedom of Establishment and Services
1. Required Reading
o Chalmers (4th ed.), chapters 18, 19, and 20
o Hartley, pp. 226–229
o Directive 2004/38/EC on the rights of citizens of the Union and their family
members to move and reside freely within the territory of the Member States
([2004] OJ L158/77)
o Article 49 TFEU, Article 56 TFEU, Article 57 TFEU, and Article 18 TFEU
2. Introduction
Free Movement of Persons is one of the four fundamental freedoms of EU law.
Previous lectures explored citizenship free movement of workers. This chapter
examines freedom of establishment (i.e. free movement of self-employed
persons) and of services.
In addition to guaranteeing free movement of workers, the TFEU also

guarantees free movement of self-employed persons, who move either on a
permanent or temporary basis between Member States. The rules governing
freedom of establishment and free movement of services were set out in the
EC Treaty and supplemented by secondary legislation and developed through
the case law of the CoJ. The Treaty provisions are now found in the Treaty on
the Functioning of the EU. The temporary pursuit of a business or a trade in
another Member State is governed by the Treaty provisions on services, if the
economic activities are permanent; the Treaty rules on Establishment apply.
Establishment entails the pursuit of an economic activity from a fixed base in a
Member State for an indefinite period, the freedom to provide services by
contrast entails the carrying out of an activity for a temporary period in a
Member State in which either the recipient or the provider of the service is not
established.
The principle of non-discrimination in Article 18 TFEU93 is an important aspect

of the Treaty provisions on establishment and services, i.e. a non-national who
is established in a Member State should be treated in the same way as a
national, and a non-established provider or recipient of services should be
treated in the same way as a provider or recipient established in the Member
State. The CoJ has declared that even non-discriminatory obstacles may be
prohibited. The concept of discriminatory measures is ill-defined.94
94 See Craig and de Búrca, at 792.

3.1 Freedom of Establishment

Article 49 TFEU)95 provides:
Within the framework of the provisions set out below, restrictions on the
freedom of establishment of nationals of a Member State in the territory
of another Member State shall be prohibited. Such prohibition shall also
apply to restrictions on the setting-up of agencies, branches or
subsidiaries by nationals of any Member State established in the
territory of any Member State.
Freedom of establishment shall include the right to take up and pursue

activities as self-employed persons and to set up and manage
undertakings, in particular companies or firms within the meaning of the
second paragraph of Article 54, under the conditions laid down for its
own nationals by the law of the country where such establishment is
effected, subject to the provisions of the Chapter relating to capital.
Originally,96 the Treaty required the Council to draw up a general programme

for the abolition of restrictions on establishment, which it did in 1961. The
general programme required the elimination of restrictive laws and
administrative practices which treat nationals of other Member States
differently from nationals of the Member State concerned.
Article 50 TFEU97 provides for the enactment of legislation to ensure freedom

of establishment, requiring the European Parliament and Council to issue
directives to attain freedom for particular activities
The provisions of this Chapter shall not apply, so far as any given
Member State is concerned, to activities which in that State are
connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with

the ordinary legislative procedure may rule that the provisions of this
Chapter shall not apply to certain activities.
Article 52 TFEU99 provides
1. The provisions of this Chapter and measures taken in pursuance

thereof shall not prejudice the applicability of provisions laid down by
law, regulation or administrative action providing for special treatment
for foreign nationals on grounds of public policy, public security or public
health.

96 In a provision deleted by the Treaty of Amsterdam, ex Article 54 EC (later Article 44 EC).

2. The European Parliament and the Council shall, acting in accordance
with the ordinary legislative procedure, issue directives for the
coordination of the abovementioned provisions.
Article 53 TFEU100 provides inter alia that in order to make it easier for persons
to take up and pursue activities as self-employed persons, the European
Parliament and Council are mandated to issue Directives on mutual recognition
of diplomas, certificates and other evidence of formal qualifications.
Article 54 TFEU101 concerns freedom of establishment for companies.
Member States shall accord nationals of the other Member States the
same treatment as their own nationals as regards participation in the
capital of companies or firms within the meaning of Article 54, without
prejudice to the application of the other provisions of the Treaty.
3.2 Freedom to Provide Services, Treaty Provisions
Article 56 TFEU:103
Within the framework of the provisions set out below, restrictions on

freedom to provide services within the Union shall be prohibited in
respect of nationals of Member States who are established in a Member
State other than that of the person for whom the services are intended.
The European Parliament and Council, acting in accordance with the

ordinary legislative procedure may extend the provisions of the Chapter
to nationals of a third country who provide services and who are
established within the Union.
Article 57 TFEU:104
Services shall be considered to be “services” within the meaning of this

Treaty where they are normally provided for remuneration, in so far as
they are not governed by the provisions relating to freedom of
movement for goods, capital and persons.
“Services” shall in particular include:

(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of

establishment, the person providing a service may, in order to do so,
temporarily pursue his activity in the Member State where the service is

103 Ex Article 49 EC. Originally Article 59 EEC

provided, under the same conditions as are imposed by that State on
its own nationals.
Article 58 TFEU105 provides that freedom to provide services in the transport

industry is governed by the Title relating to Transport106. Article 59 TFEU107
provides for legislation (Directives) to achieve the liberalisation of a specific
service. Article 60 TFEU108 provides for Member States to declare their
readiness to undertake liberalisation of services beyond the extent required by
the Directives issued under the previous Article and for the Commission to
make recommendations.
As long as restrictions on freedom to provide services have not been

abolished, each Member State shall apply such restrictions without
distinction on grounds of nationality or residence to all persons
providing services within the meaning of the first paragraph of Article
56.
The provisions of Articles 51 to 54 shall apply to the matters covered by

this Chapter.
Thus, the “official authority” exception and the public policy, security, and health
derogations provided for in Articles 51 and 52 TFEU (regarding establishment)
are applied to services by Article 62 TFEU. The official authority exception is
akin to the “public service” exception, in relation to workers and governed by
Article 45(4) TFEU.
Articles 56-62 TFEU on free movement of services require the removal of

restrictions on the provision of services between Member States, whenever a
cross-border element is present. The cross-border element can occur where:
1. the provider is not established in the State where the services are
supplied or
2. where the recipient has travelled to receive services in a Member
State other than that in which he is established.
3. a movement of services may also occur without the provider or

recipient moving, e.g. where the provision of services takes place
via telecommunications (Cf Case C-384/93 Alpine Investments
[1995] ECR I 1141).

106 In this regard, see Case C-434/15 Asociación Professional Elite Taxi (EU:C:2017:981)
where the Court of Justice held that Uber Systems Spain SL was an ‘information society service’
but a ‘service in the field of transport’ within the meaning of Article 58(1) TFEU and was
governed by the title relating to transport. Thus such an ‘’intermediation service’’ had to be
excluded from the scope of Article 56 TFEU.

While the Treaty provisions governing the free movement of services are
residual (Albore [2000] ECR I 5965 (Case C-423/98)) in that they only apply in
so far as the provisions concerning capital, persons or goods do not apply, it is
often difficult to separate the issues concerning goods from those concerning
services.111
4. Secondary Legislation
There are two important recent Directives in the field of Establishment and
Services. Directive 2005/36/EC of the European Parliament and of the Council
of 7 September 2005 on the recognition of professional qualifications [2005] OJ
L255/22 which consolidates much of the previous legislation on recognition of
professional qualifications and Directive 2006/123/EC of the European
Parliament and Council of 12 December 2006 on services in the internal market
[2006] OJ L376/36. These are important pieces of legislation but this course
does not afford time to study them in detail.
In the recent case of Rina Services and Others EU:C:2015:399 (C-593/13) the
Grand Chamber has provided clarification of the interaction between the Treaty
and Directive 2006/123 EC.
A group of companies had disputed the conformity with EU law of an Italian

regulation which provided that the registered office of a company classified as
a certification body must be situated on the national territory.
CJEU held that the requirement at issue in the main proceedings, relating to
the registered office of certification bodies, is among the requirements which
are prohibited by Article 14 of the Services Directive and which cannot be
justified:
If Member States were allowed to justify a requirement prohibited by

Article 14 of the Services Directive by relying on a provision of primary
law, that would deprive Article 14 of any practical effect by ultimately
undermining the ad hoc harmonisation intended by that directive.
As is apparent from recital 6 of the Services Directive, barriers to

freedom of establishment may not be removed solely by relying on
direct application of Article 49 TFEU, owing, inter alia, to the extreme
complexity of addressing barriers to that freedom on a case-by-case
basis.
To concede that the ‘prohibited’ requirements under Article 14 of the

Services Directive may nevertheless be justified on the basis of primary
law would in fact be tantamount to reintroducing such case-by-case
examination, under the TFEU, for all restrictions on freedom of
establishment.
A prohibition with no possibility of justification seeks to ensure the

systematic and swift removal of certain restrictions on freedom of
establishment that are regarded by the EU legislature and the
case-law of the Court as adversely affecting the proper functioning
of the internal market.
111 Craig and de Búrca, at 792.

Accordingly, even though Article 3(3) of the Services Directive
preserves the applicability of the TFEU, Article 52(1) of which allows
Member States to justify, on any of the grounds listed in that provision,
national measures constituting a restriction on the freedom of
establishment, that does not prevent the EU legislature, when adopting
secondary legislation, such as the Services Directive, giving effect to a
fundamental freedom, from restricting certain derogations,
especially when the relevant provision of secondary law merely
reiterates settled case-law to the effect that a requirement such as
that relating to the registered office is incompatible with the
fundamental freedoms on which economic operators can rely.
[Emphasis added.]
Furthermore, in Cali Apartments v. Procureur Général près la Cour d’Appel de

Paris et ville de Paris and HX v Procureur Général près la Cour d’Appel de
Paris et ville de Paris Joined Cases C-724/18 and 727/18; EU:C:2020:743, the
Grand Chamber ruled on the compatibility with the Services Directive 2006/123
of French legislation relating to activities consisting in the repeated short-term
letting, for remuneration, whether on a professional or non-professional basis,
of furnished accommodation to a transient clientele which does not take up
residence there.
It held that French legislation making the repeated short-term letting of

accommodation to a transient clientele which does not take up residence there
subject to authorisation was consistent with EU law and that combating the
long-term rental housing shortage constituted an overriding reason relating to
the public interest justifying such legislation.
Note that Directive 2004/38 EC also applies to self-employed persons

exercising their right to establishment under Article 49 TFEU.
In Florea Gusa v. Minister for Social Protection & Ors. ECLI:EU:C:2017:1004

(C-442/16), a Romanian applicant who entered Ireland in 2007 and worked
from 2008 to 2012 as a self-employed plasterer, ceased working in 2012 due
to the economic downturn. He had no further income and applied for a
jobseeker’s allowance, however he was refused on the ground that he had not
demonstrated that he still had a right to reside in Ireland. It was considered that,
on cessation of his self-employment as a plasterer, he had lost the status of
self-employed person and therefore no longer satisfied the conditions for a right
of residence laid down by Article 7 of Directive 2004/38 EC.
The Court of Appeal asked the Court of Justice, among other things, whether
the expression, “is in . . . involuntary unemployment after having been
employed for more than one year”, per Article 7(3)(b) of Directive 2004/38 EC
covered only persons who were involuntarily unemployed after having worked
as employees for more than one year, or whether it also applies to persons who
are in a comparable situation after having been self-employed for that period.
The Court noted that the “involuntary unemployment” may, depending on the
context in which it is used, refer to a situation of inactivity due to the involuntary
loss of employment following, for example, a dismissal, as well as, more
broadly, to a situation in which the occupational activity, whether on an
employed or self-employed basis, has ceased due to an absence of work for
reasons beyond the control of the person concerned, such as an economic
recession.

The Court noted that there were variations between the different language
versions of the directive. Certain versions referred, in essence, to work as an
employee, whereas in others the EU legislature uses the neutral formulation of
‘occupational activity’ instead. The Court noted that, where there is divergence
between the various language versions of an act, the provision in question must
be interpreted by reference to the general scheme and the purpose of the act.
The Court held that an EU citizen who, after more than one year, has ceased
to work in a self-employed capacity in another Member State because of an
absence of work owing to reasons beyond his control retains the status of self-
employed person and, consequently, a right to reside in that Member State:
43 Just as an employed worker may involuntarily lose his job following,

for example, his dismissal, a person who has been self-employed may
find himself obliged to stop working. That person might thus be in a
vulnerable position comparable to that of an employed worker who has
been dismissed. In those circumstances, there would be no justification
for that person being ineligible for the same protection, as regards
retention of his right of residence, as that afforded to a person who has
ceased to be employed.
44 Such a difference in treatment would be particularly unjustified in so

far as it would lead to a person who has been self-employed for more
than one year in the host Member State, and who has contributed to
that Member State’s social security and tax system by paying taxes,
rates and other charges on his income, being treated in the same way
as a first-time jobseeker in that Member State who has never carried on
an economic activity in that State and has never contributed to that
system.
45 . . . a person who has ceased to work in a self-employed capacity,

because of an absence of work owing to reasons beyond his control,
after having carried on that activity for more than one year, is, like a
person who has involuntarily lost his job after being employed for that
period, eligible for the protection afforded by Article 7(3)(b) of Directive
2004/38.
5. Freedom of Establishment
Articles 49-55 TFEU on Freedom of Establishment require the removal of
restrictions on the right of individuals and companies to maintain a permanent
or settled place of business in a host Member State.
5.1 Definition of Establishment
The CoJ, in R v. Secretary of State for Transport, ex parte Factortame [1991]

ECR I 3905 (Case C-221/89), has defined establishment as “the actual pursuit
of an economic activity through a fixed establishment in another Member State
for an indefinite period”.
In Jany and Others v. Staatssecretaris van Justitie [2001] ECR I 8615 (Case
268/99), the CoJ determined that prostitution was a provision of services for
remuneration which fell within the concept of economic activities. The CoJ

considered self-employment, in contrast to the definition of a worker, as outside
a relationship of subordination. It stated:
34. Since the essential characteristic of an employment relationship

within the meaning of Article [45 TFEU] is the fact that for a certain
period of time a person performs services for and under the direction of
another person in return for which he receives remuneration, any
activity which a person performs outside a relationship of subordination
must be classified as an activity pursued in a self-employed capacity for
the purposes of Article [49] TFEU (see Case C-107/94 Asscher [1996]
ECR I-3089, paragraphs 25 and 26).
6. Links between free movement of workers, freedom of

establishment and free movement of services
Craig and de Búrca point out (at 796) the following links. The principle of equal
treatment on the grounds of nationality lies behind all three.112 Article 45 TFEU
on workers and Article 49 TFEU on establishment require equal treatment of
persons settled in a Member State (having exercised free movement rights) the
essential difference being whether they are working in an employed or self-
employed capacity. That there is an overlap between freedom of establishment
and the free movement of services is evident when asking the question when
a self-employed person providing regular services into a Member State maybe
considered to be sufficiently connected with that Member State to be regarded
as being established there.
Chalmers113 suggests (in chapter 19, in particular at 850–851) that, over time,
Articles 45 TFEU (which is concerned with free movement of workers) and
Article 49 TFEU (which is concerned with the free movement of the self-
employed) have been interpreted in parallel by the CoJ and that this parallel
interpretation has been influenced, in particular, by EU Citizenship. He 114
correctly states (at 851), “[t]he distinction between economically active and
non-active is more important today than the distinction between employed and
self-employed.”
There remain some differences, such as Regulation 492/2011 Regulation

492/2011 of the European Parliament and of the Council on freedom of
movement for workers within the Union (codification) of 5 April 2011115 which
confers certain social benefit rights on workers but does not extend them to the
self-employed. The entitlements of the self-employed to social benefits fall to
be considered under the EU Citizenship provisions.
Article 49 TFEU (the Right of Establishment provision) applies, not just to

natural persons as is the case with Article 45 TFEU (the free movement of
workers provision), but also to legal persons such as companies.116
112 Citing AG Mayras in Van Binsbergen, Case 33/74.

113 3rd ed.
114 Ibid.
115 This Regulation repealed Regulation 1612/68 but codified it and its amendments and is
discussed in chapter 13.5.2 of the Manual.

116 Chalmers (3rd ed.), at 850.

7. Changing Approach of the CoJ to the Freedom of
Establishment
Initially the CoJ focused on the principle of non-discrimination but more recently
it has focused on liberalisation of the market.
7.1 The Right of Establishment
The right of establishment is granted to natural and legal persons. Freedom of

establishment is concerned with free movement of self-employed persons.
Craig and de Búrca117 explain (at 801) that Paragraph 1 of Article 49 TFEU
requires the abolition of restrictions on primary and secondary establishment.
Paragraph one is negatively worded and requires the abolition of restrictions
on freedom of primary and secondary establishment.118 Paragraph 2 positively
worded, in that freedom of establishment entails right for self-employed
persons to pursue their activities on an equal footing with the nationals of the
Member States in which they are established.119
The final sentence includes a reference to capital and an acknowledgement

that there is a separate chapter on the free movement of capital, which is
subject to a different and more gradual regime of liberalisation.120
In analysing the wording of Article 49 TFEU, Craig and de Búrca state (at 797):
Article [49 TFEU] appears on its face to give rights to persons in

Member States other than their Member State of nationality. Secondly,
it appears to prohibit discrimination, and to imply that its requirements
are satisfied if the person exercising the right of establishment is treated
in the same way as a national. However, we shall see that [Article 49
TFEU] has been given a broader meaning on these two points. First,
nationals may in appropriate circumstances rely on [Article 49 TFEU]
against their own State and secondly [Article 49 TFEU] prohibits not
merely unequal treatment but also unnecessary obstacles to freedom
of establishment.
Article 51 TFEU provides an exception to freedom of establishment where the

activity is connected with the exercise of official authority.
Article 52 TFEU provides that derogations from freedom of establishment on

grounds of public policy, public security or public health.
Article 54 TFEU places companies in the same position as natural persons for
the purposes of this chapter.
The 1961 General Programme made clear that discriminatory restrictions were
the target of the Treaty provisions on Establishment. The General Programme
is a policy statement and while not legislation as such, may be used as an aid
to interpretation.
117 6th ed.

118 Craig and de Búrca (3rd ed), at 772.
119 Ibid.
120 Craig and de Búrca (6 th ed), at 802.

It required the elimination of restrictive laws and administrative practices which
treat nationals of other Member States differently from nationals of the State
concerned, for example:
o attachment of license conditions

o requirement of periods of residence
o imposition of tax burdens (which make more difficult the exercise of
activities by the self-employed or by companies).
The Programme also required the elimination of restrictions on powers

attaching to the exercise of such activities, for example, power to
o enter contracts
o acquire property
o have access to credit
o receive state aids.
Directly and indirectly discriminatory restrictions alike were mentioned. A

transitional period was allowed.
There have been a considerable number of directives pursuant to this Chapter,

some of which will be considered later.
7.2 Direct Effect of Article 49 TFEU
In Reyners v. Belgium [1974] ECR 63 (Case 2/74), the CoJ held that Article 49
TFEU was directly effective. The CoJ held that Article 49 TFEU set out a
requirement of a precise result, that of non-discrimination on the grounds of
nationality.
Reyners was a Belgian of Dutch parents, resident in Belgium but retained

Dutch nationality. He received his legal education in Belgium, but he was
refused admission to the Belgian Bar (as an avocat) because he was not a
Belgian national and there was a nationality requirement for admission
Article 49 TFEU provides that freedom of establishment shall include the right
to take up and pursue activities as self-employed persons without
discrimination on the basis of nationality. The official authority exception (Article
51 TFEU) to freedom of establishment is restricted to those activities which in
themselves involve a direct and specific connection with the exercise of official
capacity.
The question at issue was whether Article 49 TFEU was directly effective and
could be relied on by Reyners in the Belgian court, even though the Council
had failed to adopt all of the necessary directives pursuant to Articles 50 and
53 TFEU.
According to the CoJ at paragraph 26, Article 49 TFEU imposes an obligation

to achieve a precise result, the fulfilment of which had to be made easier but
not dependent on the implementation of a programme of progressive
measures. The CoJ stated (at [30]):
After the expiry of the transitional period the directives provided for by
the chapter on the right of establishment have become superfluous with

regard to implementing the rule on nationality since this is henceforth
sanctioned by the Treaty itself with direct effect.
Therefore, as no directive was required in Reyners' situation to remove the

clearly discriminatory measure, which obstructed him, he could rely on Article
49 TFEU directly. In this case direct effect is countering EU inaction as there
are no directives fleshing out the Treaty provision.
The CoJ acknowledged (at [40]) that the directives “had not lost all interest
since they preserve an important scope in the field of measures intended to
make easier the effective exercise of the right of freedom of establishment.”
But what about a slightly different situation where it would appear that more
Community legislation might be necessary before an individual would be able
to rely on Article 49 TFEU?
Craig and de Búrca121 give the example of a doctor qualified to practice

medicine in Italy, who sought to set up practice in another Member State, the
UK for example. Would refusal to recognise the Italian qualification be an
impermissible restriction on her freedom of establishment? As there are
different training systems in the two States, co-coordinating legislation would
seem desirable.
Prior to such co-coordinating legislation being passed a case with the following
facts was heard by the CoJ: Thieffrey v. Conseil de l'ordre des Avocats a la
Cour de Paris [1977] ECR 765.
Thieffrey was Belgian national, who had obtained a doctorate in law in Belgium
and who had practised as an advocate in Brussels for some years. He obtained
French university recognition of his qualifications as equivalent to a degree in
French law and obtained a certificate of aptitude for the profession of avocat.
However, he was refused admission to the training stage as an advocate at the
Paris Bar on the ground that he lacked a degree in French law. Thieffrey
argued that, even in the absence of directives that he was entitled to rely on
Article 49 TFEU. The CoJ stated:
Consequently, if the freedom of establishment provided for by [Article

49 TFEU] can be ensured in a Member State either under the provisions
of the laws and regulations in force, or by virtue of the practices of the
public service or of professional bodies, a person subject to Community
law cannot be denied the practical benefit of that freedom solely by
virtue of the fact, that for a particular profession, the directives provided
for by [Article 53 TFEU] have not yet been adopted.
Thus, if Thieffrey had already obtained what was recognised to be an

equivalent qualification, and had satisfied the practical training requirements,
the Member State could not justify refusing him admission to the Bar solely
because he did not have French qualifications. There was an obligation on the
professional body to act in accordance with the Treaty.
The CoJ developed this line of reasoning further in subsequent decisions. The
CoJ ruled that Article 49 TFEU precluded the Member States from simply
refusing, without further explanation, to allow nationals of another Member
121 3rd ed., at 774; 4th ed., at 798–799.

State to practise their trade or profession on the ground that their qualification
was not equivalent to the corresponding national qualification.
On the contrary the Treaty imposed specific, positive obligations on national

authorities and professional bodies to take steps to secure the free movement
of workers and freedom of establishment, even in the absence of European
Community or national legislation with regard to equivalence of qualification.
UNECTEF v. Heylens [1987] ECR 4097 (Case 222/86) involved a Belgian

football trainer who was working in France and applied for recognition of his
Belgian diploma. His application for equivalence was refused by France. The
CoJ held that Member States were entitled, in the absence of harmonising
directives to regulate the knowledge of qualifications necessary to pursue a
particular occupation. It said (at [13])
The procedure for the recognition of equivalence must enable the

authorities must enable the national authorities to assure themselves
on an objective basis, that the foreign diploma certificate holder has
knowledge and qualifications which are, if not identical, at least
equivalent to those certified by the national diploma …
Assessment must be effected exclusively in the in the light of the level of

knowledge and qualifications which its holder can be assumed to possess.122
Where employment was dependent on the possession of a diploma, the CoJ

ruled that it must be possible to obtain judicial review of decision to obtain
equivalence, and to ascertain reasons for refusing to recognise equivalence.
Vlassopoulou v. Ministerium fur Justiz [1991] ECR 2357 (Case 340/89)

involved a Greek national who held a Greek law degree and who had practised
German law for several years in Germany. Her application for admission to Bar
was rejected on grounds that she had not passed the relevant German exams.
15 …. national requirements [even if applied without any

discrimination on the basis of nationality]123 concerning
qualifications may have the effect of hindering nationals of other
MS in the exercise of their right of establishment…this could be
the case if national rules took no account of the knowledge and
qualifications already acquired by a person in another Member
State.
16. Consequently a Member State which receives a request to

admit a person to a profession to which access, under national
law, depends upon the possession of a diploma or a
professional qualification must take into consideration the
diplomas, certificates and other evidence of qualifications which
the person concerned has acquired in order to exercise the
same profession in another Member State by making a
comparison btw the specialised knowledge and the abilities
certified by those diplomas and the knowledge and qualifications
required by the national rules. [Footnote added.]
122 At [13].
123 I.e., each person (including German nationals) is required to pass the exams.

Member States must consider any education and training received by the
holder of the diploma or certificate and must compare the knowledge and skills
acquired with those required by the domestic qualification.
If equivalent, the Member State must recognise the diploma. If not, the Member
State must assess any knowledge or practical training the person may have
acquired in the host Member State is sufficient.
Vlassopoulou highlights the extent to which the effectiveness of Article 49

TFEU was bolstered by the Court in the years following Reyners.124 Member
States are required to examine thoroughly the basis for the qualification held
by an EU national to inform the person concerned if the qualification is
insufficient, and to respect their rights in the process.
The approach adopted by the CoJ in Vlassopoulou closely reflected Directive

89/48 on the mutual recognition of higher education diplomas which was
adopted around that time but was not applicable to the facts of Vlassopoulou.125
Craig and de Búrca126 also state (at 804) that “Directive 89/48 has since been
replaced by the consolidating Directive 2005/35 EC which embodies the same
approach and same principles . . . . the broad principles articulated in the
Vlassopoulou and Heylens cases continue to apply to situations which are not
covered by the secondary legislation.”
An important decision concerning the application of the Treaty articles on

Establishment and services to training part of a professional qualification was
delivered by the CoJ in Morgenbesser v. Consiglio dell’Ordine degli avvocati di
Genova [2003] ECR I 3467 (Case C-313/01) which concerned, an Article 267
TFEU reference from an Italian court which was effectively an appeal from a
decision of the National Bar Council (which was in turn confirming the decision
of the Genoa Bar Council) to refuse her enrolment in the register of practicanti.
The question referred asked whether “[i]rrespective of recognition and

confirmation of equivalence, can a diploma issued to a Community national in
a Member State (in this case, France) automatically be relied upon for the
purposes [of obtaining enrolment in the register of persons undertaking the
necessary period of practice for admission to the bar] in another Member State
(in this case Italy), by virtue of the rules of the EC Treaty…on freedom of
establishment and the freedom to provide services [ respectively Articles 4(3)
TEU, Article 18 TFEU, Article 26 TFEU, Article 45 TFEU Article 49 TFEU) and
by virtue of [Article 165 TFEU]…?”
Essentially, the Italian court was asking whether EU law precludes the
authorities of a Member State from refusing to enrol the holder of a legal
diploma obtained in another Member State in the register of persons
undertaking the necessary period of practice for admission to the bar solely on
the ground that it is not a legal diploma issued or confirmed by a university of
the first (host) Member State.

125 Ibid. Note that the date of implementation of Directive 2005/36 EC had not passed at the
time that Vlassopoulou was decided and therefore the new Directive was not applicable in that
case.
126 6th ed.

The CoJ said that it was first necessary to determine whether the applicant
could benefit from with Directive 98/5 concerning the profession of lawyers or
from Directive 89/48 on the mutual recognition of diplomas. The CoJ held that
directive 98/5 concerns lawyers who are fully qualified and therefore did not
apply to persons who have not obtained full qualification. Neither was Ms
Morgenbesser entitled to rely on Directive 89/48 as the activity of practicante
was not a regulated profession within the meaning of the directive separate
from that of avvocato.
As neither directive applied the CoJ went onto consider whether the provisions
of Articles 45 and 49 TFEU, as interpreted in the Vlassopoulou could be relied
upon by the applicant. The CoJ stated (at [57] and [58]):
According to the case-law the principles of which are set out in

Vlassopoulou, the authorities of a Member State, when considering a
request by a national of another Member State for authorisation to
exercise a regulated profession, must take into consideration the
professional qualification of the person concerned by making a
comparison between the qualifications certified by his diplomas,
certificates and other formal qualifications and by his relevant
professional experience and the professional qualifications required by
the national rules for the exercise of the profession in question (see,
most recently, Case C- 232/99 Commission v. Spain [2002] ECR I 4235,
21.
That obligation extends to all diplomas, certificates and other evidence

of formal qualifications as well as to the experience of the person
concerned, irrespective of whether they were acquired in a member
State or in a third country, and it does not cease to exist as a result of
the adoption of directives on the mutual recognition of diplomas (Case
C-238/98 Hocsman [2000] ECR I 6623, paragraphs 23 and 31;
Commission v. Spain [2002] ECR I 4235, paragraph 22).
The Bar Council of Genoa was of the view that as a practicante was undergoing
a period of training that the provisions of Articles 49 and 45 TFEU did not apply.
At paragraph 60, the CoJ held that the work of a practicante was remunerated
and was with a view to access to a regulated profession to which Article 49
TFEU applied. In so far as the remuneration takes the form of a salary the CoJ
was of the view that now Article 45 TFEU might also apply.
The CoJ stated at paragraph 67 that it was the duty “of the competent authority
to examine…whether and to what extent, the knowledge certified by diploma
granted in another Member State and the qualifications or professional
experience obtained there, together with the experience obtained in the
Member State in which the candidate seeks enrolment, must be regarded as
satisfying, even partially, the conditions required for access to the activity
concerned.”
Therefore, at paragraph 72, the CoJ held that EU law precludes the authorities
of a Member State from refusing to enrol the holder of a legal diploma obtained
in another Member State in the register of persons undertaking the necessary
period of practice for admission to the bar solely on the ground that it is not a
legal diploma issued, confirmed or recognised as equivalent by a university of
the first State.

Finally, in an important Irish Supreme Court matter, we see a discussion of this
at both domestic and EU level. In Klohn v. An Bord Pleanála [2021] IESC 30,
the Court was tasked with ruling with the net issue as to whether a German
qualified lawyer was entitled to represent an appellant in proceedings without
being accompanied by an Irish qualified lawyer.
The appellant had represented himself when the appeal was initially before the
Irish Supreme Court, but a preliminary reference was made by the Supreme
Court in the matter and as the CJEU does not allow for lay litigants to appear
before it, he had been represented by a German lawyer for the purposes of the
reference before the CJEU. The appellant now sought to be represented his
German lawyer in dealing with the remaining matters which remained
outstanding in respect of the appeal.
The appellant’s lawyer had previously practised in Ireland under the European
Communities (Lawyers’ Establishment) Regulations 2003, transposing
Directive 98/5/EC, however, she no longer retained that status and it was
sought that she should represent the appellant in her capacity as someone
entitled to practise in Germany.
In light of the important issues raised, the Court requested submissions from
the General Council of the Bar of Ireland, the Law Society of Ireland and the
Attorney General.
Following a hearing on the matter, the Court decided to refer to the CJEU
certain questions concerning the German lawyer’s entitlement to appear.
The CJEU delivered its decision on that second reference in VK v. An Bord

Pleanála (Case C-739/10) (ECLI:EU:C:2021:185) concluding:
(i) That, in principle, the Irish regulation is not in breach of European

Union law;
(ii) That, however, the application of the requirement to appear in court
accompanied by an Irish qualified lawyer in all cases and without
exception, would be in breach of European Union law such that the
requirement in question must be disapplied in cases where it goes
beyond what is necessary in order to attain the objective of the
proper administration of justice, specifically in cases where the
visiting lawyer, by virtue of his or her professional experience, is
capable of representing the litigant in the same way as a lawyer who
practises habitually before the Irish courts.
(iii) That it is a matter for the national court concerned to make an
assessment as to whether the circumstances of the case in question
are such that the national measure must be disapplied on that basis.
In light of that judgment of the CJEU, the matter was put in for further
consideration, with the appellant’s lawyer setting out the reasons why she
considered that, in light of the judgment of the CJEU, the Supreme Court should
determine that she was entitled to represent the appellant without being
accompanied by an Irish qualified lawyer.
In the course of the hearing, the Court asked the appellant’s lawyer to supply a
brief account in writing of her experience in advising on and conducting
proceedings in Ireland during the period when she was entitled to practise in

Ireland on foot of the Lawyers’ Establishment Directive. She duly supplied
those details.
The Supreme Court held that on the facts, it was clear that the appellant’s
lawyer had advised clients in Ireland in environmental law and related fields
and had represented such clients before the Irish courts. That experience might
well not be sufficient to enable the Court to be satisfied that she would be
capable of representing a litigant in the same way as a lawyer who practises
habitually in the Irish courts, where the litigation in question was not narrowly
confined to the field of environmental law (para. 9)
However, particular regard had to be had to one of the points made by the
appellant’s lawyer. She correctly drew attention to the very specific and narrow
issue which now remains for decision by this Court, being the consequences
for the appellant’s appeal of the judgment of the CJEU in the original reference
made by this Court. She actually represented Mr. Klohn in the proceedings
before the CJEU in that very matter. Thus, if she were to represent Mr. Klohn
in the continuation of his appeal before this Court, she would be appearing in
relation to a matter where the only real question of substance would involve the
application of a judgment of the CJEU to the circumstances of Mr. Klohn’s
appeal in circumstances where she had herself represented Mr. Klohn in the
proceedings before the CJEU which gave rise to that very judgment (para.s 10-
11).
Taking into account all of the matters advanced, the Supreme Court held that
it was appropriate that the appellant’s German lawyer be permitted to represent
Mr. Klohn without the need to be accompanied by an Irish qualified lawyer.
7.3 Rights under Article 49 TFEU
Wyatt and Dashwood state (at 753–754) that freedom of establishment

includes several distinct rights:
1. The right of a natural or legal person to exit his own State to

establish a primary or secondary establishment in another Member
State
2. The right to have more than one place of business in the EU
3. The right to carry on business under the laws laid down for its own
nationals in the host State
4. The right to resist national measures which are liable to hinder or
make less attractive the exercise of the right of establishment
guaranteed by the Treaty.
These rights are subject to the exceptions and derogations recognized in EU

law.
7.4 The Scope of Article 49 TFEU
Article 49 TFEU prohibits both direct and indirect discrimination on the grounds
of nationality.
An example of direct discrimination can be seen in the Factortame [1991] ECR

I 3905 (Case C-221/89) where a requirement that in order for a ship to qualify
for the nationality of a Member State, it had to be owned by nationals of that

Member State. In Commission v. Germany [2011] ECR I 4355 (Case C-54/08)
the CoJ held that a nationality condition required by German legislation for
access to the profession of notary constituted discrimination on the grounds of
nationality prohibited by Article 49 TFEU. Germany was found to be in breach
of its obligations under the Treaties. In a series of rulings on the same date
Austria, Luxembourg, France and Belgium were also found to have breached
their Treaty obligations in imposing nationality requirements for access to the
profession of notary.
In PH Asscher v. Staatssecretaris van Financien [1994] ECR I 1137 (Case C-

107/94), a tax case, the CoJ highlighted (at [38]) legislation “liable to act mainly
to the detriment of nationals of another Member State.”
7.4.1 Can nationals rely on Article 49 TFEU in their own Member State?
Knoors v. Secretary of State for Economic Affairs [1979] ECR 399 (Case 115/
78) involved a plumber who was a Dutch national. He had trained in Belgium
and had worked there. He sought to rely on a Directive adopted pursuant to
the Treaty chapter on Establishment. The Dutch Government argued that a
Dutch national could not rely on ex Article 43 EC against his own Member State.
The CoJ held (at [24]) that while the relevant treaty provisions could not be
applied to “wholly internal situations” the benefit of EU law could not be
excluded from a member State’s own national where that individual had lawfully
resided in another Member State and had acquired qualifications there.
In PH Asscher v. Staatssecretaris van Financien [1994] ECR I 1137 (Case C-

107/94), the CoJ stated (at [37]):
It is settled law that although provisions of the Treaty relating to freedom

of establishment cannot be applied in situations which are purely
internal to a Member State, [Article 49 TFEU] nevertheless cannot be
interpreted in such a way as to exclude a given Member State’s own
nationals from the benefit of Community law where by reason of their
conduct they are, with regards to their Member State of origin, in a
situation which may be regarded as equivalent to any other person
enjoying the rights and liberties guaranteed under the Treaty.
In R v. HM Treasury and Commissioners for Inland Revenue ex parte Daily

Mail and General Trust plc [1988] ECR 3483 (Case 81/87), the CoJ held that
[Article 49 TFEU] prohibited restrictions by a Member State on its own
nationals, or on a company incorporated under its legislation seeking to
establish themselves on the territory of another Member State.
7.4.2 Does Article 49 TFEU cover only discriminatory restrictions?

Article 49(2) TFEU was originally assumed to imply that EU nationals would
have no grounds for complaint under Article 49 TFEU if the same provisions
were applied to them as to the nationals of the host State. This interpretation
was initially given support by some rulings of the CoJ.127
127
For an early example of that early approach see Robert Fearon & Co v. Irish Land
Commission [1984] ECR 3677 (Case 182/83).

Craig and de Búrca128 point out (at 804), “[h]owever in keeping with the pattern
of its case law on free movement of goods, services and workers, the [CoJ] has
…. moved clearly away from the emphasis on unequal treatment.”
This is illustrated in Ordre des Avocats v. Klopp [1984] ECR 2971 (Case
107/83),which concerned a German lawyer who was refused admission to the
Paris Bar on the sole ground he maintained an office in another Member State.
Statutes of the Paris Bar required lawyers to have only one office and that it
had to be within district of court at which lawyer was admitted. This rule applied
to both nationals and non-nationals.
The CoJ ruled that a Member State could not require a lawyer who wished to
practice there to have only one establishment throughout the EU since Article
49 TFEU explicitly guarantees the right to setup more than one place of work
in the Community.
Klopp was not of itself authority for a general proposition that even non-
discriminatory rules may breach Article 49 TFEU, given that Art 49 TFEU]
expressly guarantees the right of secondary establishment which was denied
in that case, but it demonstrated that freedom of establishment requires more
than equal treatment in certain circumstances.129
The CoJ’s broad interpretation of Article 49 TFEU is apparent from Gebhard v.

Consiglio dell' Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165
[1995] ECR 1 4165 (Case C-55/94). The CoJ applied Article 49 TFEU to equally
applicable measures in a manner consistent with the Bosman ruling in the
context of Article 45 TFEU and the free movement of workers.
A German national was subjected to disciplinary proceedings Milan Bar for

pursuing a professional activity as a lawyer in Italy on a permanent basis, in
chambers set up by himself and using the title avvocato, although he had not
been admitted as a member of the Milan Bar and his training, qualifications and
experience had not formally been recognised in Italy. The Italian freedom to
provide services implementing measure contained a stipulation that a person
who exercised this right was not entitled to open chambers. The CoJ stated:
29 The Milan Bar Council has argued that a person such as Mr

Gebhard cannot be regarded for the purposes of the Treaty as
being "established" in a Member State ° in his case, Italy °
unless he belongs to the professional body of that State or, at
least, pursues his activity in collaboration or in association with
persons belonging to that body.
30 That argument cannot be accepted.
31 The provisions relating to the right of establishment cover the

taking-up and pursuit of activities (see, in particular, the
judgment in Reyners, paragraphs 46 and 47). Membership of a
professional body may be a condition of taking up and pursuit of
particular activities. It cannot itself be constitutive of
establishment.
128 Ibid.
129 Ibid., at 805.

32 It follows that the question whether it is possible for a national of
a Member State to exercise his right of establishment and the
conditions for exercise of that right must be determined in the
light of the activities which he intends to pursue on the territory
of the host Member State.
Having established that in the absence of EU rules Member States may

justifiably subject the pursuit of self-employed activities to bona fide rules
relating to organisation, ethics, qualifications, titles etc. the CoJ continued:
37 It follows, however, from the Court' s case-law that national

measures liable to hinder or make less attractive the exercise of
fundamental freedoms guaranteed by the Treaty must fulfil four
conditions: they must be applied in a non-discriminatory
manner; they must be justified by imperative requirements in the
general interest; they must be suitable for securing the
attainment of the objective which they pursue; and they must not
go beyond what is necessary in order to attain it (see Case C-
19/92 Kraus v Land Baden-Wuerttemberg [1993] ECR I-1663,
paragraph 32).
Craig and de Búrca consider (at 801):
There is no mention of the requirement in this paragraph of a

requirement of discrimination, direct or indirect. Instead any national
rule which is likely to hinder or make less attractive the exercise the
‘fundamental’ freedom of establishment (or any other fundamental
freedom) may violate the Treaty unless it justified by an imperative
requirement and applied in a proportionate and non-discriminatory
manner.
In summary, Craig and de Búrca state (at 813):
Despite the importance of equal treatment and non-discrimination in the

field of establishment, the [CoJ] broadly adopts the same approach to
freedom of establishment as it does in other areas of free movement.
In other words, any obstacle to the right of establishment in a Member
State, whether or not it has a differential impact on nationals and non-
nationals, is caught by [Article 49 TFEU] unless it can be justified.
In Commission v. Greece [2005] ECR I 3177 (Case C-140/03) the CoJ

determined that a national rule which permitted opticians to only own one shop
was caught by Article 49 TFEU and required justification. In Commission v.
Italy [2009] ECR I 4103 (Case C-531/06) and in Apothekerkammer des
Saarlandes v. Saarland [2009] ECR I 4171 (Case C-171 and C-172/07), an
Italian rule restricting the operating of pharmacies to pharmacists was caught
by Article 49 TFEU; it constituted a restriction on the freedom of establishment
and required objective justification.
7.5 Difference between Freedom of Establishment and Freedom to

Provide Services
Gebhard v. Consiglio dell' Ordine degli Avvocati e Procuratori di Milano [1995]

ECR I-4165 (Case C-55/94) also provides a useful illustration of the distinction

between freedom of establishment and freedom to provide services. The CoJ
stated:
22 The provisions of the chapter on services are subordinate to

those of the chapter on the right of establishment in so far, first,
as the wording of the first paragraph of [ Article 56 TFEU]
assumes that the provider and the recipient of the service
concerned are "established" in two different Member States and,
second, as the first paragraph of [Article 57 TFEU] specifies that
the provisions relating to services apply only if those relating to
the right of establishment do not apply. It is therefore necessary
to consider the scope of the concept of “establishment”.
23 The right of establishment, provided for in [Articles 49-54 TFEU]

of the Treaty, is granted both to legal persons within the
meaning of [Article 54 TFEU] and to natural persons who are
nationals of a Member State of the Community. Subject to the
exceptions and conditions laid down, it allows all types of self-
employed activity to be taken up and pursued on the territory of
any other Member State, undertakings to be formed and
operated, and agencies, branches or subsidiaries to be set up.
24 It follows that a person may be established, within the meaning

of the Treaty, in more than one Member State, in particular, in
the case of companies, through the setting-up of agencies,
branches or subsidiaries [Article 49 TFEU] and, as the Court has
held, in the case of members of the professions, by establishing
a second professional base (see Case 107/83 Ordre des
Avocats au Barreau de Paris v Klopp [1984] ECR 2971,
paragraph 19).
25 The concept of establishment within the meaning of the Treaty

is therefore a very broad one, allowing a Community national to
participate, on a stable and continuous basis, in the economic
life of a Member State other than his State of origin and to profit
therefrom, so contributing to economic and social
interpenetration within the Community in the sphere of activities
as self-employed persons (see, to this effect, Case 2/74
Reyners v Belgium [1974] ECR 631, paragraph 21). 26 In
contrast, where the provider of services moves to another
Member State, the provisions of the chapter on services, in
particular the third paragraph of [ Article 57 TFEU], envisage that
he is to pursue his activity there on a temporary basis. …
27 As the Advocate General has pointed out, the temporary nature
of the activities in question has to be determined in the light, not
only of the duration of the provision of the service, but also of its
regularity, periodicity or continuity. The fact that the provision of
services is temporary does not mean that the provider of
services within the meaning of the Treaty may not equip himself
with some form of infrastructure in the host Member State
(including an office, chambers or consulting rooms) in so far as
such infrastructure is necessary for the purposes of performing
the services in question.

8. Freedom of Establishment of Companies
Article 54 TFEU 130 provides:
Companies or firms formed in accordance with the law of a Member

State and having their registered office, central administration or
principal place of business within the Union shall, for the purposes of
this chapter, be treated in the same way as natural persons who are
nationals of Member States.
“Companies or firms” means companies or firms constituted under civil

or commercial law, including co-operative societies, and other legal
persons governed by public or private law, save for those which are
non-profit making.
In Commission v. Germany (the Insurances Services case) [1986] ECR 3755

(Case 205/84), the CoJ held:
21. In that respect, it must be acknowledged that an insurance

undertaking of another Member State which maintains a
permanent presence in the Member State in question comes
within the scope of the provisions of the Treaty on the right of
establishment, even if that presence does not take the form of a
branch or agency, but consists merely of an office managed by
the undertaking's own staff or by a person who is independent
but authorized to act on a permanent basis for the undertaking,
as would be the case with an agency. In the light of the
aforementioned definition contained in the first paragraph of
Article 57 TFEU [the freedom to provide services provision],
such an insurance undertaking cannot therefore avail itself of
Articles 56 and 57 TFEU with regard to its activities in the
member state in question.
In Case 79/85 Segers v. Bedriffvereniging voor Bank-en Verzekereingswegen

[1986] ECR 2375, the CoJ determined that:
19. …the provisions of [Articles 49 TFEU and 54 TFEU] must be

interpreted as prohibiting the competent authorities of a Member
State from excluding the director of a company from a national
sickness insurance scheme solely on the ground that the
company in question was formed in accordance with the law of
another Member State, where it also has its registered office,
even though it does not conduct any business there.
In R v. HM Treasury and Commissioners for Inland Revenue Ex parte Daily

Mail and General Trust plc [1988] ECR 3483 (Case 81/87), the CoJ held that
the UK could require a company which wished to move its central management
and control from the UK to the Netherlands to settle its taxes and wind-up the
company. The CoJ that Member States laws relating to the “real seat” of the
company had not been harmonized and Member States might have different
views and ways of regulating the transfer of a head office.
130 Ex Article 48 EC. Originally Article 58.

In Centros Ltd. v. Erhvervs-og Selkassstyrelesen [1999] ECR I 1459 (Case C-
212/97), the CoJ considered the absence of harmonising legislation to be
irrelevant. The CoJ stated:
20. The immediate consequence of this [Article 54 TFEU] is that

those companies are entitled to carry on their business in
another Member State through an agency, branch or subsidiary.
The location of their registered office, central administration or
principal place of business serves is the connecting factor with
the legal system of a particular State in the same way as does
nationality in the case of a natural person …
The CoJ held that a company was established in the UK, although it had not
traded there, and Danish authorities were not justified in restricting its right to a
secondary establishment in the form of a branch. Two Danish nationals set up
a limited liability company in the UK. They were Danish resident. In Denmark
there was a requirement of a share capital of £20,000 whereas in the UK there
was no requirement of minimum share capital. The purpose of the company
was to trade in Denmark through a branch. The Danish authorities refused to
register the Danish branch, regarding the situation as one that was wholly
internal to Denmark.
21. Where it is the practice of a Member State, in certain

circumstances, to refuse to register a branch of a company
having its registered office in another Member State, the result
is that companies formed in accordance with the law of that
other Member State are prevented from exercising the freedom
of establishment conferred on them by Articles [49 and 54
TFEU] of the Treaty.
22. Consequently, that practice constitutes an obstacle to the

exercise of the freedoms guaranteed by those provisions.
23. According to the Danish authorities, however, Mr and Mrs Bryde

cannot rely on those provisions, since the sole purpose of the
company formation which they have in mind is to circumvent the
application of the national law governing formation of private
limited companies and therefore constitutes abuse of the
freedom of establishment. In their submission, the Kingdom of
Denmark is therefore entitled to take steps to prevent such
abuse by refusing to register the branch.
24. It is true that according to the case-law of the Court a Member

State is entitled to take measures designed to prevent certain of
its nationals from attempting, under cover of the rights created
by the Treaty, improperly to circumvent their national legislation
or to prevent individuals from improperly or fraudulently taking
advantage of provisions of Community law…
25. However, although, in such circumstances, the national courts

may, case by case, take account - on the basis of objective
evidence - of abuse or fraudulent conduct on the part of the
persons concerned in order, where appropriate, to deny them
the benefit of the provisions of Community law on which they
seek to rely, they must nevertheless assess such conduct in the

light of the objectives pursued by those provisions (Paletta II,
paragraph 25).
26. In the present case, the provisions of national law, application of

which the parties concerned have sought to avoid, are rules
governing the formation of companies and not rules concerning
the carrying on of certain trades, professions or businesses. The
provisions of the Treaty on freedom of establishment are
intended specifically to enable companies formed in accordance
with the law of a Member State and having their registered
office, central administration or principal place of business within
the Community to pursue activities in other Member States
through an agency, branch or subsidiary.
27. That being so, the fact that a national of a Member State who
wishes to set up a company chooses to form it in the
Member State whose rules of company law seem to him the
least restrictive and to set up branches in other Member
States cannot, in itself, constitute an abuse of the right of
establishment. The right to form a company in accordance with
the law of a Member State and to set up branches in other
Member States is inherent in the exercise, in a single market,
of the freedom of establishment guaranteed by the Treaty.
The CoJ held that the Danish Authorities refusal to register the Danish branch
of the UK company was a breach the freedom of establishment provisions.
Further the CoJ held that the restriction could not be justified by the mandatory
requirements in the public interest.
In Ubeerseeing BV v. Nordic Construction Company Baumanagement GmbH

[2002] ECR I 9919 (Case C-208/00), the CoJ considered a German rule by
virtue of which a company could only be recognised if it was incorporated under
the law applicable in the place where its central administration was located.
Ubeerseeing BV was originally incorporated under Dutch law. Subsequently
the shares were transferred to German nationals and its place of central
administration thereby became Germany. The consequence for Ubeerseeing
BV was that it would have been unable to institute legal proceedings. The CoJ
held that the German rule which refused to recognise a company validly
incorporated in another Member State constituted a restriction on freedom of
establishment. The CoJ accepted that there might be overriding requirements
relating to the general interest which might justify certain restrictions on the
freedom of establishment but they could not justify denial of legal capacity
tantamount to “an outright negation of the freedom of establishment conferred
on companies by [Articles 49 and 54 TFEU].”
In this case the CoJ distinguished an aspect of its earlier decision in R v. HM

Treasury and Commissioners for Inland Revenue ex parte Daily Mail and
General Trust plc [1988] ECR 3483 (Case 81/87).
Craig and de Búrca state:
Although the [CoJ] distinguished the Daily Mail case on its facts (where
the restriction on the company’s right to retain legal personality in the
event of a transfer of registered office or centre of administration was
imposed by the Member State of incorporation), the reality is that the

reasoning in Ubeerseeing clearly moves away from the underlying
broad rationale in Daily Mail. Ubeerseeing establishes that, despite the
lack of harmonization of the laws governing the connecting factor for
incorporation, a company which is legitimately incorporated in one
Member State and moves its centre of administration to another State
cannot be denied recognition of its legal personality by the latter. While
the Court accepted that the enhancement of legal certainty, protection
of creditors and minority investors, and legitimate fiscal requirements
could in principle provide grounds to justify rules restricting the freedom
of establishment, the German rule in question which denied the legal
capacity of Ubeerseeing amounted to an outright denial of the freedom
of establishment and was disproportionate.
The CoJ’s approach is also evident in the case of Kamer van Koophandel en
Fabrieken voor Amsterdam v. Inspire Art Ltd. [2003] ECR I 10155 (Case C-
167/01).
In Polbud – Wykonawstwo ECLI:EU:C:2017:804 (Case C-106/16), the Court

held that Member States may not impose mandatory liquidation on companies
that wish to transfer their registered office to another Member State
The transfer of the registered office of such a company, when there was no
change in the location of its real head office, fell within the scope of the freedom
of establishment protected by EU law pursuant to Article 49 TFEU.
This matter centered on the decision to refuse an application submitted by

Polbud, a limited liability company governed by Polish law, to remove it from
the Polish commercial register following the transfer of its registered office to
Luxembourg.
Polish law provided for the mandatory liquidation of a national company when
it transferred its registered office abroad. The removal of Polbud from the Polish
commercial register had therefore been refused on the ground that the
documents relating to its liquidation had not been submitted.
Polbud challenged that refusal arguing that it had not lost its legal personality
and continued to exist as a company incorporated under Luxembourg law. The
Polish Supreme Court therefore sought to clarify, inter alia, the extent to which
Articles 49 and 54 TEFU applied, and whether the relevant Polish legislation
was compatible with EU law.
The Court recognised:
33 Under the second paragraph of Article 49 TFEU, read in conjunction

with Article 54 TFEU, the freedom of establishment for companies or
firms covered by the latter article includes, inter alia, the right to set up
and manage such companies or firms under the conditions laid down,
by the legislation of the Member State where such establishment is
effected, for its own companies or firms. Freedom of establishment
therefore encompasses the right of a company or firm formed in
accordance with the legislation of a Member State to convert itself into
a company or firm governed by the law another Member State (see, to
that effect, judgment of 27 September 1988, Daily Mail and General
Trust, 81/87, EU:C:1988:456, paragraph 17), provided that the
conditions laid down by the legislation of that other Member State are

satisfied and, in particular, that the test adopted by the latter State to
determine the connection of a company or firm to its national legal order
is satisfied.
The Court acknowledged:
51 . . . the national legislation at issue in the main proceedings, by

requiring the liquidation of the company, is liable to impede, if not
prevent, the cross-border conversion of a company. It therefore
constitutes a restriction on freedom of establishment (see, to that effect,
judgment of 16 December 2008 Cartesio, C-210/06, EU:C:2008:723,
paragraphs 112 and 113).
The Court went on to consider whether said restriction on freedom of

establishment was justified by overriding reasons in the public interest. The
Court noted that said legislation gave no consideration to the actual risk of
detriment to the interests of creditors, minority shareholders and employees
and provided no possibility of choosing less restrictive measures capable of
protecting those interests. Accordingly, the Court held:
59 It follows that the mandatory liquidation required by the national

legislation at issue in the main proceedings goes beyond what is
necessary to achieve the objective of protecting the interests referred
to in paragraph 56 of the present judgment.
As to the Polish government’s justification that said law prevented abusive

practices, the Court concluded:
63 . . . the mere fact that a company transfers its registered office from
one Member State to another cannot be the basis for a general
presumption of fraud and cannot justify a measure that adversely
affects the exercise of a fundamental freedom guaranteed by the Treaty
(see, by analogy, judgment of 29 November 2011, National Grid Indus,
C-371/10, EU:C:2011:785, paragraph 84).
64 Since a general obligation to implement a liquidation procedure

amounts to establishing a general presumption of the existence of
abuse, the Court must hold that legislation, such as that at issue in the
main proceedings, which imposes such an obligation, is
disproportionate.
In A/S Bevola and Jens W. Trock ApS v. Skatteministeriet

ECLI:EU:C:2018:424 (Case C-650/16) concerned whether definitive losses of
a permanent establishment in one Member State could be set-off against the
profits of the company it belongs to, even if that company is incorporated in a
different Member State for tax purposes.
Bevola, a company incorporated in Denmark, was a member of a group whose

ultimate parent, Jens W. Trock, was also a Danish company. Bevola’s Finnish
establishment closed in 2009 with losses, which it contended could not be
deducted in Finland. It had therefore applied to set off these losses against its
taxable profits in Denmark, but its application had been turned down by the
Danish tax authorities on the ground that Danish law did not allow the set off
of losses realised by a permanent establishment situated outside Denmark.

The Court of Justice examined whether Danish law contravened Article 49
TFEU in circumstances where losses realised by a permanent establishment
in Denmark could have been set off against taxable profits realised in
Denmark.
The Grand Chamber made some important observations in this regard:
16 Even though, according to their wording, the provisions of EU law on

freedom of establishment are aimed at ensuring that foreign nationals
are treated in the host Member State in the same way as nationals of
that State, they also prohibit the Member State of origin from
hindering the establishment in another Member State of one of its
nationals or of a company incorporated under its legislation
(judgment of 23 November 2017, A, C-292/16, EU:C:2017:888,
paragraph 24).
17 Those considerations also apply where a company established in

one Member State carries on business in another Member State
through a permanent establishment (judgment of 15 May 2008, Lidl
Belgium, C-414/06, EU:C:2008:278, paragraph 20).
18 . . . a provision which allows losses incurred by a permanent

establishment to be taken into account in calculating the taxable profits
of the company to which the establishment belongs constitutes a tax
advantage (see, to that effect, judgment of 15 May 2008, Lidl Belgium,
C-414/06, EU:C:2008:278, paragraph 23).
19 Granting such an advantage where the losses are incurred by a

permanent establishment situated in the Member State of the resident
company, but not where the losses are incurred by a permanent
establishment in a Member State other than that of the resident
company, has the consequence that the tax situation of a resident
company possessing a permanent establishment in another Member
State is less favourable than it would be if the permanent establishment
were in the same Member State as the resident company. By reason of
that difference in treatment, a resident company could be discouraged
from carrying on its business through a permanent establishment
situated in another Member State (see, to that effect, judgment of 15
May 2008, Lidl Belgium, C-414/06, EU:C:2008:278, paragraphs 24 and
25).
20 However, a difference in treatment deriving from the tax legislation

of a Member State to the detriment of companies making use of their
freedom of establishment does not constitute a restriction of that
freedom if it concerns situations which are not objectively comparable,
or if it is justified by an overriding reason in the public interest
proportionate to that objective (see to that effect, judgment of 25
February 2010, X Holding, C-337/08, EU:C:2010:89, paragraph 20).
The Court ultimately concluded that losses attributable to a non-resident

permanent establishment become definitive when, first, the company
possessing the establishment has exhausted all the possibilities of deducting
those losses available under the law of the Member State in which the
establishment is situated and, second, it has ceased to receive any income

from that establishment, so that there is no longer any possibility of the losses
being taken into account in that Member State.
While the Court held that it was ultimately for the national court to assess
whether those conditions were satisfied, the Court nevertheless concluded:
66 . . . Article 49 TFEU must be interpreted as precluding legislation of

a Member State under which it is not possible for a resident company
which has not opted for an international joint taxation scheme, such as
that at issue in the main proceedings, to deduct from its taxable profits
losses incurred by a permanent establishment in another Member
State, where, first, that company has exhausted the possibilities of
deducting those losses available under the law of the Member State in
which the establishment is situated and, second, it has ceased to
receive any income from that establishment, so that there is no longer
any possibility of the losses being taken into account in that Member
State, which is for the national court to ascertain.
There have been several recent cases under Article 54 TFEU dealing with the
issue of turnover taxes. In Vodafone Magyarország (C-75/18; EU:C:2020:139)
the CJEU held that Articles 49 and 54 TFEU did not preclude legislation of a
Member State that established a progressive tax on turnover, the actual burden
of which was mainly borne by undertakings controlled directly or indirectly by
nationals of other Member States or by companies that had their registered
office in another Member State, due to the fact that those undertakings
achieved the highest turnover in the market concerned.
In Tesco-Global Áruházak Zrt v Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C‑323/18, EU:C:2020:140) the court reached a similar conclusion.
Finally, while many of the cases on freedom of establishment of companies

relate to taxation measures, vessel registration has been another contentious
issue.
In International Tranport Workers Federation and Finnish Seaman’s Union v.

Viking Line ABP and OÜ Viking Line Eesti (Case C-438/05 [2007] ECR I –
10779). Viking Line was a Finnish registered company operating a shipping
route from Helsinki to Tallinn in Estonia and when flying a Finnish flag, it was
obliged, in accordance with collective bargaining and Finnish law, to pay the
crew at the same pay rates as those which applied in Finland. Viking Line tried
to get around this requirement by registering its company in Estonia, however
several unions took collection action and sent a circular to its affiliates asking
them to refrain from entering into negotiations with Viking or Viking Eesti. The
affiliates were expected to follow this recommendation because of the principle
of solidarity between trade unions and the sanctions which they could face if
they failed to comply with that circular.
In the course of dispute that followed, legal proceedings were issued by Viking
Line and the Court of Appeal of England and Wales, seised of the dispute,
made a reference for a preliminary rule, inter alia, on the scope of the freedom
of establishment and services.

The CJEU held:
36 … collective action such as that at issue in the main proceedings,

which may be the trade unions’ last resort to ensure the success of their
claim to regulate the work of Viking’s employees collectively, must be
considered to be inextricably linked to the collective agreement the
conclusion of which FSU is seeking.
37 It follows that collective action … falls, in principle, within the scope

of Article [49 TFEU].
40 In that respect it is sufficient to point out that, even if, in the areas
which fall outside the scope of the Community’s competence, the Member
States are still free, in principle, to lay down the conditions governing the
existence and exercise of the rights in question, the fact remains that, when
exercising that competence, the Member States must nevertheless comply
with Community law …
41 Consequently, the fact that Article 137 EC does not apply to the right
to strike or to the right to impose lock-outs is not such as to exclude
collective action such as that at issue in the main proceedings from the
application of Article [49 TFEU]…
44 Although the right to take collective action, including the right to

strike, must therefore be recognised as a fundamental right which forms an
integral part of the general principles of Community law the observance of
which the Court ensures, the exercise of that right may none the less be
subject to certain restrictions. As is reaffirmed by Article 28 of the Charter
of Fundamental Rights of the European Union, those rights are to be
protected in accordance with Community law and national law and
practices. In addition, as is apparent from paragraph 5 of this judgment,
under Finnish law the right to strike may not be relied on, in particular,
where the strike is contra bonos mores or is prohibited under national law
or Community law.
45 In that regard, the Court has already held that the protection of
fundamental rights is a legitimate interest which, in principle, justifies a
restriction of the obligations imposed by Community law, even under a
fundamental freedom guaranteed by the Treaty, such as the free
movement of goods (see Case C-112/00 Schmidberger [2003] ECR
I-5659, paragraph 74) or freedom to provide services (see Case
C-36/02 Omega [2004] ECR I-9609, paragraph 35).
46 However, in Schmidberger and Omega, the Court held that the

exercise of the fundamental rights at issue, that is, freedom of expression
and freedom of assembly and respect for human dignity, respectively, does
not fall outside the scope of the provisions of the Treaty and considered
that such exercise must be reconciled with the requirements relating to
rights protected under the Treaty and in accordance with the principle of
proportionality (see, to that effect, Schmidberger, paragraph 77,
and Omega, paragraph 36).

47 It follows from the foregoing that the fundamental nature of the right
to take collective action is not such as to render Article [49 TFEU]
inapplicable to the collective action at issue in the main proceedings.
Finally, in North of England P & I Association Ltd. v. Bundeszentralamt fur

Steuern Case C-786/19, a reference was made by the Finance Court of
Cologne on the interpretation of various Articles of the Second Council
Directive 88/357/EEC on the coordination of laws, regulations and
administrative provisions relating to direct insurance other than life assurance
and laying down provisions to facilitate the effective exercise of freedom to
provide services, and Council Directive 92/49/EEC on the coordination of laws,
regulations and administrative provisions relating to direct insurance other than
life insurance and amending Directives 73/239/EEC and 88/357/EEC (‘third
non-life insurance directive’) in respect of a notice seeking payment of tax on
insurance premiums paid regarding the provision of insurance cover by P & I
for various risks linked to the operation of sea-going vessels entered in the
shipping register maintained Germany but flying the flag of another Member
State or of a third State under a temporary flagging-out authorisation. The Court
held, in the context of the insurance of ships, that the “Member State of
registration” was the Member State in whose territory the ship was entered in
an official register for the purposes of proof of ownership.
9. Freedom to Provide Services

Craig and de Búrca explain:
The right of establishment entails the pursuit of an economic activity

from a fixed base in a Member State for an indefinite period. Freedom
to provide services under EU law, on the other hand, entails the carrying
out of an economic activity for a temporary period in a Member State in
which either the recipient or the provider of the service is not
established.
Why might an individual or a company wish to distinguish between

Establishment and Services? Establishment renders the individual or the
company subject to the host State rules whereas a service provider is subject
to home State rules.131
In Commission v. Germany (the Insurances Services case) [1986] ECR 3755

(Case 205/84), the CoJ held that where a permanent base is maintained in a
Member State, that the natural person or undertaking is governed by the Treaty
provisions on Freedom of Establishment rather than the Treaty provisions on
free movement of services. The CoJ stated:
21. In that respect, it must be acknowledged that an insurance

undertaking of another Member State which maintains a
permanent presence in the Member State in question comes
within the scope of the provisions of the Treaty on the right of
establishment, even if that presence does not take the form of a
branch or agency, but consists merely of an office managed by
the undertaking's own staff or by a person who is independent
131 See the Insurance Services case.

but authorized to act on a permanent basis for the undertaking,
as would be the case with an agency. In the light of the
aforementioned definition contained in the first paragraph of
Article 57 TFEU (the freedom to provide services provision)],
such an insurance undertaking cannot therefore avail itself of
[now Articles 56 and 57 TFEU] with regard to its activities in the
member state in question.
In Gebhard v. Consiglio dell' Ordine degli Avvocati e Procuratori di Milano

[1995] ECR I-4165 [1995] ECR 1 4165 (Case C-55/94) the CoJ stated:
27. As the Advocate General has pointed out, the temporary nature
of the activities in question has to be determined in the light, not
only of the duration of the provision of the service, but also of its
regularity, periodicity or continuity. The fact that the provision of
services is temporary does not mean that the provider of
services within the meaning of the Treaty may not equip himself
with some form of infrastructure in the host Member State
(including an office, chambers or consulting rooms) in so far as
such infrastructure is necessary for the purposes of performing
the services in question.
Thus, it is the temporary or permanent nature of the economic activities which

determines whether the Treaty provisions on Establishment or Services which
apply.
10. Articles 56 and 57 TFEU

Pursuant Article 56 TFEU, restrictions on the provision of services are
prohibited in respect of nationals of Member States who are established in a
State of the EU other than that of the person for whom the services are
intended.
To benefit from the freedom of services provisions the individual must be

established in a Member State of the EU. The rights are available to nationals
of the Member States and also pursuant to the General Programme to
companies formed under the laws of a Member State and having their seats,
centres of administration or main establishments within the EU.
Pursuant to Article 57 TFEU services are those which are ordinarily supplied
for remuneration. Article 57 TFEU also sets out the residual nature of the
Freedom to Provides Services provisions.
Important legislation comprises Directive 2006/123/EC of the European

Parliament and Council of 12 December 2006 on services in the internal market
[2006] OJ L376/36.
11. Direct Effect of Article 56 TFEU?

In Van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de
Metaalnijverheid [1974] ECR 1299 (Case 33/74), the CoJ considered whether
Article 56 TFEU was directly effective?

A Dutch national who was legal adviser to Van Binsbergen, transferred his
place of residence from Holland to Belgium during proceedings. He was
informed that he could no longer represent his client as under Dutch law, only
persons established in the Netherlands could act as legal advisers. There was
a preliminary reference to the CoJ asking whether what is now Article 56 TFEU
was directly effective.
24. The provisions of [Article 56 TFEU]], the application of which

was to be prepared by directives issued during the transitional
period, therefore became unconditional on the expiry of that
period.
25. The provisions of that Article abolish all discrimination against

the person providing the service by reason of his nationality or
the fact that he is established in a Member State other than that
in which the service is to be provided.
26. Therefore, as regards at least the specific requirement of

nationality or of residence, [Articles 56 and 57 TFEU] impose a
well-defined obligation, the fulfilment of which by the member
states cannot be delayed or jeopardized by the absence of
provisions which were to be adopted in pursuance of powers
conferred under [Articles 59 and 60 TFEU].
The lawyer in this case was a national who sought to rely on the provision
against his own Member State. The relevant factor for Article 56 TFEU is that
the provider is established in a Member State other than that of the person for
whom the service is to be provided.
12. The Scope of Article 56 TFEU
12.1 The Need for a Cross-Border Element
In Procureur du Roi v. Marc JVC Debauve [1980] ECR 833 (Case 52/79),
criminal proceedings were brought against Belgian cable television companies
for infringing a prohibition on the transmission of broadcasts of commercial
advertisements in Belgium. The CoJ held that the provisions of the Treaty on
freedom to provide services cannot apply to activities whose relevant elements
are confined within a single Member State. Whether that is the case depends
on findings of fact which are for the national court to establish.
However, the CoJ may give a broad interpretation to find a cross-border

element.
This can be seen in Christelle Deliège v. Ligue francophone de judo et

disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de
judo and François Pacquée [2000] ECR I 2549 (Case C-51/96 and C-191/97),
the CoJ did not accept as a wholly internal situation a Belgian’s challenge to
the selection rules of the Belgian Judo Federation. The CoJ stated:
58. Finally, as regards the objections expressed in the observations

submitted to the Court according to which, first, the main
proceedings concern a purely internal situation and, second,

certain international events fall outside the territorial scope of
the Treaty, it must be remembered that the Treaty provisions on
the freedom to provide services are not applicable to activities
which are confined in all respects within a single Member State
(see, most recently, Case C-108/98 RI.SAN. [1999] ECR I-
0000132, paragraph 23, and Case C-97/98 Jägerskiöld [1999]
ECR I-0000133, paragraph 42). However, a degree of extraneity
may derive in particular from the fact that an athlete participates
in a competition in a Member State other than that in which he
is established. (Footnotes added. Emphasis added.)
12.2 The Freedom to Receive Services
Articles 56 and 57 TFEU do not expressly govern the freedom to receive

services.
Article 1 of Directive 64/221 which previously regulated the public policy,

security and health derogations provided for in the Treaty, protected the
recipient who travels to receive services. Article 1 (b) of Directive 73/148 also
required the abolition of restrictions on movement and residents of nationals
wishing to go to another Member State as recipients of services.
However it was not until the decision in Luisi and Carbone v. Ministero del
Tesoro [1984] ECR 377 (Joined Cases 286/82 and 26/83) that the CoJ
confirmed that the Treaty articles themselves cover the position of recipients,
and that freedom to move for the recipient was the necessary corollary of the
freedom for the provider.
16. It follows that the freedom to provide services includes the

freedom, for the recipients of services, to go to another Member
State in order to receive a service there, without being
obstructed by restrictions, even in relation to payments and that
tourists, persons receiving medical treatment and persons
travelling for the purpose of education or business are to be
regarded as recipients of services.
This judgment has been confirmed in later cases, for example in Cowan v. Le
Tresor Public [1989] ECR 195 (Case 186/87), in which the CoJ held that the
refusal, under French criminal compensation scheme, to compensate a British
tourist who had been attacked while in Paris was a restriction within the
meaning of Article 56 TFEU without, as Craig and De Búrca state (at 818), the
CoJ specifying exactly what service he had received.
12.3 The Economic Nature of Services
To be covered by the Treaty, services must be economic in nature, i.e. they

must be provided for remuneration. In Bond van Adverteerders and Others v.
Netherlands State [1988] ECR 2085 (Case 352/85), the CoJ stated at
paragraph 16 that remuneration does not have to come from the recipient of
the services so long as there was remuneration from some party.
132 Now reported at [1999] ECR I 5219.

133 Now reported at [1999] ECR I 7319.

In SPUC v. Grogan [1991] I ECR 4685 (Case C-159/90), the CoJ ruled that
abortion could be regarded as a service within the meaning of EU law. The
student associations had raised as a defence that as abortion was a service
within the meaning of the Freedom to Provide Services provisions of the Treaty
that Ireland could not place restrictions on the right of Irish residents to have
abortions in the UK, where abortions were legal. Further questions sought to
establish whether it was contrary to EU law for a Member State where abortion
was forbidden to prohibit student associations from distributing information
about clinics in another Member State where abortion was legal. The CoJ did
not answer these questions directly but focused on the “freedom to provide
services” provisions of the Treaty, holding that there was no economic link
between the student associations and the abortion clinics and that the matter
fell outside the scope of EU Law.
In Christelle Deliège v. Ligue francophone de judo et disciplines associées

ASBL, Ligue belge de judo ASBL, Union européenne de judo and François
Pacquée [2000] ECR I 2549 (Case C-51/96 and C-191/97) the CoJ drew on its
case law in the field of free movement of workers. The CoJ ruled that the mere
fact that a sports association or federation unilaterally classifies its members as
amateur athletes does not itself mean that those members do not engage in
economic activities
56. In that connection, it must be stated that sporting activities and,

in particular, a high-ranking athlete's participation in an
international competition are capable of involving the provision
of a number of separate, but closely related, services which may
fall within the scope of [now Article 56 TFEU] of the Treaty even
if some of those services are not paid for by those for whom they
are performed (see Case 352/85 Bond van Adverteerders and
Others v Netherlands State [1988] ECR 2085, paragraph 16).
57. For example, an organiser of such a competition may offer

athletes an opportunity of engaging in their sporting activity in
competition with others and, at the same time, the athletes, by
participating in the competition, enable the organiser to put on a
sports event which the public may attend, which television
broadcasters may retransmit and which may be of interest to
advertisers and sponsors. Moreover, the athletes provide their
sponsors with publicity the basis for which is the sporting activity
itself.
12.3.1 But what if remuneration for the service is provided by the State?
Chalmers states (at 758);
The most dramatic extension of [the CoJ’s] line of reasoning has been
the use of [Article 56 TEFU] to allow individuals to claim certain welfare
entitlements and access to other Member States public services. They
are in the jargon of public sector economists mixed goods. They are
provided free or sold at below cost of their production. Without controls,
there are strong incentives for “free-riders” to consume the goods
irrespective of the economic cost involved. In the absence of a common
transport, education or health policy funded by a common exchequer, it
would seem unjust that taxpayers who funded a particularly high level
of service in one Member State should also bear the cost of “free riders”

from another Member State, who have not contributed to the cost. The
initial approach of the Court of Justice was to hold, therefore that public
services fell outside of [now Article 56 TFEU].
In Belgium v. Humbel [1988] ECR 5365 (Case 263/86), the parents of a French
boy challenged the requirement to pay fees for a technical school on the
grounds that Belgian nationals did not have to pay such fee. The CoJ held that
no service being provided. In setting up an education system, the State was
not attempting to engage in economic activities and provide a service but to
achieve objectives in the social, cultural and education fields which were to be
financed principally out of the public purse. The CoJ stated:
17. The essential characteristic of remuneration thus lies in the fact

that it constitutes consideration for the service in question, and
is normally agreed upon between the provider and the recipient
of the service.
18. That characteristic is, however, absent in the case of courses

provided under the national education system. First of all, the
State, in establishing and maintaining such a system, is not
seeking to engage in gainful activity but is fulfilling its duties
towards its own population in the social, cultural and educational
fields. Secondly, the system in question is, as a general rule,
funded from the public purse and not by pupils or their parents.
19. The nature of the activity is not affected by the fact that pupils or
their parents must sometimes pay teaching or enrolment fees in
order to make a certain contribution to the operating expenses
of the system. A fortiori, the mere fact that foreign pupils alone
are required to pay a minerval can have no such effect.
In Kohll v. Union de Caisses de Maladie [1998] ECR I 1931 (Case C-158/96),

the CoJ took a different approach, stating Article 56 TFEU could be applied to
cover not merely private service which are sold at market price but also public
services. Kohll, a Luxembourg national, applied for his daughter to have
orthodontic treatment in Germany.
Under Luxembourg law such treatment could be received free if provided in

Luxembourg but required prior authorisation from the sickness treatment fund
if it were to be provided outside the country. Authorisation was refused on
grounds that the treatment was not urgent and could in any case be provided
within Luxembourg. Kohll argued that there was a breach of Article [56 TFEU]
as dental treatment constituted a service under that provision. The CoJ stated:
29. The dispute before the national court concerns treatment

provided by an orthodontist established in another Member
State, outside any hospital infrastructure. That service, provided
for remuneration, must be regarded as a service within the
meaning of Article [57 TFEU] of the Treaty, which expressly
refers to activities of the professions.
30. It must therefore be examined whether rules such as those at

issue in the main proceedings constitute a restriction on freedom
to provide services, and if so, whether they may be objectively
justified.

Geraets-Smits v. Stichting Ziekenfonds; and Peerbooms v. Stichting CZ Groep
Zorgverzekeringen [2001] ECR I 5473 (Case C-157/99) involved two
challenges to a Dutch law on the reimbursement of costs of health care from a
Dutch sickness insurance fund. There were conditions attached to receiving
treatment abroad, prior authorisation was required, and reimbursement would
only be given if the treatment was regarded by the Dutch medical community
as normal and no adequate treatment could be provided in the Netherlands.
Geraets-Smits, who suffered from Parkinson’s Disease, sought reimbursement
for multidisciplinary treatment in Germany. Peerbooms, who was in a
vegetative state, sought reimbursement for neurostimulation treatment in
Austria. Both claims were refused. Geraets-Smits was refused as the treatment
was not normal and that adequate treatments were available in Holland.
Peerbooms was refused as it was an experimental and not a normal treatment.
The CoJ stated:
80. From both those perspectives, a requirement that the

assumption of costs, under a national social security system, of
hospital treatment provided in another Member State must be
subject to prior authorisation appears to be a measure which is
both necessary and reasonable.
81. Looking at the system set up by the ZFW [the Dutch sickness
insurance fund], it is clear that, if insured persons were at liberty,
regardless of the circumstances, to use the services of hospitals
with which their sickness insurance fund had no contractual
arrangements, whether they were situated in the Netherlands or
in another Member State, all the planning which goes into the
contractual system in an effort to guarantee a rationalised,
stable, balanced and accessible supply of hospital services
would be jeopardised at a stroke.
82. Although, for the considerations set out above, Community law
does not in principle preclude a system of prior authorisation,
the conditions attached to the grant of such authorisation must
none the less be justified with regard to the overriding
considerations examined and must satisfy the requirement of
proportionality referred to in paragraph 75 above.
Craig and de Búrca state (at 823) that the upshot of this decision together with
a series of later cases is that:
Articles 56 and 57 TFEU may apply to any service, however essential a

public service it may be, which is provided for remuneration and the line
between publicly and privately remunerated services remains uncertain.
Health-care services, however funded, fall within the scope of the Treaty
where a patient who has travelled to another member State and paid for
health care there seeks [reimbursement] from their national system.
In Commission v. Ireland (taxe d’immatriculation) ECLI:EU:C:2017:698 (C-

552/15), in the context of Article 258 TFEU infringement proceedings, the
Commission argued that by levying a full amount of vehicle registration tax
(VRT) upon the registration by an Irish resident of a motor vehicle leased or
rented in another Member State, without taking account of the duration of the
use of the vehicle, where the vehicle is neither intended to be used essentially
in Ireland on a permanent basis nor in fact used in that way, and by setting

conditions for a refund of this tax which go beyond what is strictly necessary
and proportionate, Ireland failed to fulfil its obligations under Article 56 TFEU.
The Court held:
82 The obligation to pay in advance the full amount of registration tax

is, therefore, liable to deter both Irish residents from calling on vehicle
rental or leasing services offered by service providers established in
other Member States and those service providers from offering vehicle
rental or leasing services to Irish residents. Such an obligation thus
constitutes a restriction on the freedom to provide services, prohibited,
in principle, by Article 56 TFEU.
83 As regards whether such a restriction is justified, it should be noted

that the situations which are covered by the present action, in which the
duration of the rental or lease is limited and known in advance,
correspond for the most part to those where the vehicle is not intended
to be used essentially in a Member State on a permanent basis and is
not in fact used in that way.
84 It is true that rental or leasing contracts may be extended, with the

effect, in that case, that the use of vehicles rented or leased in a
Member State other than Ireland draws closer to the use of vehicles in
Ireland on a permanent basis. However, as the Advocate General has
observed in point 57 of his Opinion, Irish law does not make a distinction
on the basis of the duration or substance of the contract underlying the
use of the vehicle in Ireland, which would enable the full amount of
registration tax to be applied only to situations that are similar to
permanent use. Furthermore, as the Commission has rightly pointed
out, an extension of a fixed-term contract cannot be presumed.
85 Regarding justification for the aforesaid restriction on the freedom to

provide services, Ireland submits, first, that the choice of the tax base
for the registration tax and of the detailed rules governing its application
falls, in the absence of harmonisation of vehicle taxation in the
European Union, within its fiscal sovereignty and that the Commission
seeks, by the action it has brought, to compel it to alter those matters in
order to achieve harmonisation of the bases of taxation of vehicles in
the European Union.
86 . . . whilst the Member States are free to exercise their powers of

taxation in the area of vehicle taxation, they are nonetheless required
to so in compliance with EU law.
87 The fact that vehicle taxation falls within Ireland’s competence

cannot therefore justify the restriction on the freedom to provide
services.
89 Purely economic objectives cannot constitute an overriding reason

in the public interest justifying a restriction on the freedom to provide
services (see, to that effect, judgments of 15 April 2010, CIBA, C-96/08,
EU:C:2010:185, paragraph 48 and the case-law cited, and of 24 March
2011, Commission v Spain, C-400/08, EU:C:2011:172, paragraph
74)…

91 It must, however, be verified, whether the Irish system of registration
tax, consisting in the obligation to pay the full amount of that tax,
coupled with a refund mechanism, observes the principle of
proportionality…
108 . . . by imposing the obligation to pay in advance the full amount of

the registration tax applicable in the event of permanent registration,
whatever the actual duration of the proposed use in Ireland of the
vehicle imported into that Member State, Ireland has failed to fulfil its
obligations under Article 56 TFEU, since such an obligation, even
coupled with the possibility of a refund, is not proportionate to the
objective pursued by that tax, in cases where the duration of the lease
or rental has been determined and is known in advance.
12.4 Illegal or unethical “services”
Lotteries (HM Customs and Excise v. Schindler [1994] ECR I 1039 (Case C-
275/92)); prostitution (Jany v. Staatssecretaris van Justitie [2001] ECR I 8615
(Case 268/99)); gambling (Zenatti [1999] ECR I 7289 (Case C-67/98) and
abortion (SPUC v. Grogan [1991] ECR I 4685 (Case C-159/90)) have all been
held to be “services” within Article 56 TFEU.
The approach of the CoJ seems to be that if an activity is lawful in some

Member States it constitutes a service for the purpose of Article 56 TFEU.
Member States are free to regulate the service provided they do so
proportionately and without discrimination on the grounds of nationality.
Omega Spielhallen [2004] ECR I 9609 (Case C-36/02) involved a laserdome in

Germany where a game was to be played involving playing at killing persons
by firing at sensory tags on jackets. The German authorities served a
prohibition order on the German company prior to the opening of the
laserdome. The German company sought to resist the prohibition order and
relied inter alia on Article 56 TFEU on the basis that it sought to operate under
the franchise of a UK company whose freedom to provide services rights would
be infringed.
36. However, measures which restrict the freedom to provide

services may be justified on public policy grounds only if they
are necessary for the protection of the interests which they are
intended to guarantee and only in so far as those objectives
cannot be attained by less restrictive measures (see, in relation
to the free movement of capital, Église de Scientologie,
paragraph 18).
37. It is not indispensable in that respect for the restrictive measure

issued by the authorities of a Member State to correspond to a
conception shared by all Member States as regards the precise
way in which the fundamental right or legitimate interest in
question is to be protected. Although, in paragraph 60 of
Schindler, the Court referred to moral, religious or cultural
considerations which lead all Member States to make the
organisation of lotteries and other games with money subject to
restrictions, it was not its intention, by mentioning that common
conception, to formulate a general criterion for assessing the

proportionality of any national measure which restricts the
exercise of an economic activity.
38. On the contrary, as is apparent from well-established case-law

subsequent to Schindler, the need for, and proportionality of, the
provisions adopted are not excluded merely because one
Member State has chosen a system of protection different from
that adopted by another State (see, to that effect, Läärä,
paragraph 36; Zenatti, paragraph 34; Case C-6/01 Anomar and
Others [2003] ECR I-0000, paragraph 80).
39. In this case, it should be noted, first, that, according to the

referring court, the prohibition on the commercial exploitation of
games involving the simulation of acts of violence against
persons, in particular the representation of acts of homicide,
corresponds to the level of protection of human dignity which the
national constitution seeks to guarantee in the territory of the
Federal Republic of Germany. It should also be noted that, by
prohibiting only the variant of the laser game the object of which
is to fire on human targets and thus ‘play at killing’ people, the
contested order did not go beyond what is necessary in order to
attain the objective pursued by the competent national
authorities.
40. In those circumstances, the order of 14 September 1994 cannot

be regarded as a measure unjustifiably undermining the
freedom to provide services.
Stanley International Betting Ltd. and Stanleybet Malta Ltd. V. Ministero

dell'Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli C-
375/17; ECLI:EU:C:2018:1026 concerned lottery services in Italy. The
lottery was organised by the State under a dual concessions system
whereby the first concession was for games sales, entrusted to sales outlets
on the basis of a multi-concessionaire model and the second was for the
service of drawing lottery numbers, and the computerised management of
the sales network. The Customs and Monopolies Agency, ADM, was
entrusted with organising the call for tenders for a new concession.
The concession was awarded to Lottoitalia Srl. Stanley, which was active in
Italy in the fixed-odds betting industry via ‘data transmission centres’
providing sports betting services, took the view that it had been prevented
from participating in the tender and brought an action for annulment of the
selection procedure before the Regional Administrative Court of Lazio of the
selection procedure. Stanley challenged the tender competition’s
compatibility with EU law and certain conditions for participation in the call
for tenders provided for in the tender specifications and in the model
contract.
The Regional Administrative Court of Lazio dismissed Stanley’s action,

however, Stanley brought an action for that judgment to be varied before
the Council of State challenging the compatibility of the application to the
Lotto, unlike other games, prediction games and betting, of the sole
concessionaire model with EU law.

The Council of State raised a question of the interpretation of EU law and
held it was necessary to make a reference to the CJEU as to, inter alia,
whether EU law — in particular, the right of establishment and the freedom
to provide services, and the principles of non-discrimination, transparency,
freedom of competition, proportionality and consistency — precluded rules,
such as those laid down in Italy, which provided for an exclusive mono-
concessionaire model for management of the Lotto, but not for other games,
prediction games and betting.
The Court held:
41 …it is necessary to determine whether such a restriction may

be allowed as a derogation, on grounds of public policy, public
security or public health, as expressly provided for under Articles
51 and 52 TFEU, which are also applicable in the area of freedom
to provide services by virtue of Article 62 TFEU, or justified, in
accordance with the case-law of the Court, by overriding reasons
in the public interest (judgment of 22 January 2015, Stanley
International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25,
paragraph 47 and the case-law cited)…
43 … as the Court has previously pointed out in its case-law on

games of chance, consumer protection and the prevention of both
fraud and incitement to squander money on gambling can be
categorised as overriding reasons of public interest justifying
restrictions on fundamental freedoms deriving from Articles 49 and 56
TFEU (see, to that effect, judgment of 22 January 2015, Stanley
International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25,
point 48 and the case-law cited).
44 In contrast, as is also clear from the Court’s case-law,

administrative inconvenience as well as economic reasons do not
constitute grounds that can justify a restriction on a fundamental
freedom guaranteed by EU law (see, to that effect, judgment of 30
June 2011, Zeturf, C‑212/08, EU:C:2011:437, paragraphs 48 and 52
45 However, the identification of the objectives in fact pursued

by the national legislation is, in the context of a case referred to the
Court under Article 267 TFEU, within the jurisdiction of the referring
court (judgment of 30 April 2014, Pfleger and Others, C‑390/12,
49 Moreover, since the choice of the methods of organisation and

control of the activities of managing and practicing games of chance
falls to the national authorities within the limits of their discretion, the
fact that a Member State has chosen for the concession for
management of the Lotto a system with a sole concessionaire,
unlike the prevailing situation in the same Member State, as
regards the organisation of the market for other games of chance,
cannot, in itself, have an effect on the assessment of the
proportionality of the rules at issue in the main proceedings, which

must be assessed solely in the light of the objectives which they
pursue…
52 Such a dual system… is compatible with Article 56 TFEU,

since the referring court establishes that the rules restricting the
freedom to provide services actually pursue, in a consistent and
systematic manner, the objectives relied on by the Member State
concerned (see, to that effect, judgment of 28 February 2018, Sporting
Odds, C‑3/17, EU:C:2018:130, paragraph 33).
53 Having regard to all of those considerations, the answer to the

first question must be that Articles 49 and 56 TFEU must be interpreted
as not precluding national rules, such as those in the case in the
main proceedings, which provide, for the concession for
management of the Lotto, a sole concessionaire model, unlike
other games, prediction games and betting, to which a multiple
concessionaire model applies, provided that the national court
establishes that the national rules actually pursue, in a consistent
and systematic manner, the objectives relied on by the Member
State concerned.
12.5 Non-discriminatory Provisions
In Criminal proceedings against Jean-Claude Arblade and Arblade & Fils SARL
and Bernard Leloup, Serge Leloup and Sofrage SARL [1999] ECR I 8453
(Cases C-369 and 376/96), the CoJ stated:
33. It is settled case-law that [now Article 56 TFEU] of the Treaty

requires not only the elimination of all discrimination on grounds
of nationality against providers of services who are established
in another Member State but also the abolition of any restriction,
even if it applies without distinction to national providers of
services and to those of other Member States, which is liable to
prohibit, impede or render less advantageous the activities of a
provider of services established in another Member State where
he lawfully provides similar services.
13. Exceptions, Derogations, and Justifications (Establishment

and Services)
The "Official authority" exception and the public policy, security and health
derogations provided for in articles 51 and 52 TFEU (with regard to
establishment) are applied to services by Article 62 TFEU.
13.1 The “Official Authority” Exception
Article 51 TFEU provides for an exception to the Freedom of Establishment

rules where the activities are concerned with the exercise of “official authority”.
This provision was interpreted by the CoJ in Reyners and given a narrow
interpretation.
The question arose in Reyners as to whether within a profession such as that

of avocat, only those activities inherent in the profession which are connected

with the exercise of official authority are excepted from the Chapter on the right
of establishment, or whether the whole of this profession is excepted by reason
of the fact that it comprises activities connected with the exercise of this
authority. The CoJ held (at [43]–[45]):
Having regard to the fundamental character of freedom of

establishment and the rule on equal treatment with nationals in the
system of the Treaty, the exceptions allowed by the first paragraph of
Article [51 TFEU] cannot be given a scope which would exceed the
objective for which this exemption clause was inserted.
The first paragraph of Article [51 TFEU] must enable Member States to
exclude non-nationals from taking up functions involving the exercise of
official authority which are connected with one of the activities of the
self-employed person provided for in Article [49 TFEU].
This need is fully satisfied when the exclusion of nationals is limited to

those activities which taken on their own constitute a direct and specific
connection with the exercise of official authority. [Emphasis added.]
The CoJ went on to state (at [46]) that the extension of the exception to an
entire profession could only occur in exceptional circumstances.
The CoJ stated (at [47]) that the exception could not be extended to an
independent profession where the activities connected with the exercise of
official authority are separable from the professional activity in question taken
as a whole.
The court stated (at [52]) that the most typical activities of the profession of
avocat, in particular, such as consultation and legal assistance and also
representation and the defence of parties in court, even when the intervention
or the assistance of the avocat is compulsory or is a legal monopoly cannot be
considered as connected with the exercise of official authority.
Thus, the exception to freedom of establishment is restricted to those activities

which in themselves involve a direct and specific connection with the exercise
of official capacity.
In Commission v. Germany [2011] ECR I 4355 (Case C-54/08) the CoJ held
that the activities of notaries as defined in the current state of the German legal
system were not connected with the exercise of official authority within the
meaning of Article 51 TFEU.
In Peňarroja Fa [2012] ECR I 1785 (Case C-372/09 and 373/09) the CoJ
determined that the activities of court experts in the field of translation did not
constitute activities which are connected with the exercise of “official authority”
for the purposes of Article 51 TFEU. The CoJ considered that translations
carried out by experts left the discretion of judicial authority and the free
exercise of judicial power intact and therefore such translation revives could not
be regarded as activities connected with the exercise of official authority.
In Commission v. Latvia ECLI:EU:C:2015:577 (Case C-151/14) the CoJ

rejected the Latvian government’s argument in annulment proceedings under
Article 258 TFEU that the activities of notaries were outside the scope of Article

49 TFEU as they were connected with the exercise of official authority within
the meaning of the first paragraph of Article 51 TFEU. The CoJ held:
65 Firstly, as regards the activities of preservation of funds, securities

and documents, it must be found that the Republic of Latvia has
disputed only that such activities do not have any connection with the
exercise of official authority within the meaning of the first paragraph of
Article 51 TFEU.
66 Secondly, with regard to the activities carried out in matters of

succession, on the one hand, a notary may proceed to divide the estate
only if there is no disagreement between the heirs in that regard and,
on the other, that, in the event of disagreement between the heirs, the
notary must, under Article 250.3(5) of the Code of Civil Procedure, place
the inventory, valuation and draft instrument dividing the estate before
the court.
67 Since the tasks entrusted to notaries in matters of succession are

carried out in that matter, either on a consensual basis or as preparatory
tasks under the supervision of the court, they cannot, consequently, be
regarded as having, in themselves, a direct and specific connection with
the exercise of official authority.
68 With regard, thirdly, to the activities carried out by notaries in divorce

matters, it must be noted that, in accordance with Articles 325 and 327
of the Law on the notarial profession, a notary has powers to dissolve a
marriage where the spouses have expressed their agreement on the
principle of the divorce and where, if they have a child in common or
jointly own a property, they have concluded a prior contract concerning
the custody of the child, the arrangements for visiting rights and the
means necessary for its maintenance or the division of the property.
69 Furthermore, with regard to other divorce cases, it is clear from

Article 233 of the Code of Civil Procedure, which forms part of Chapter
29 entitled ‘Aspects concerning the annulment and dissolution of
marriage’, that handling such cases falls within the powers of the courts.
70 Clearly, therefore, a notary’s powers in divorce matters, which are

based entirely on the wishes of the parties and leave the prerogatives
of the courts intact in the absence of agreement between the parties,
do not have any connection with the exercise of official authority…
73 Thirdly, as regards the particular status of notaries in the Latvian

legal system, it need only be recalled that it is by reference to the nature
of the relevant activities themselves, not by reference to that status as
such, that it must be ascertained whether those activities fall within the
exception in the first paragraph of Article 51 TFEU (see, inter alia,
judgment in Commission v Belgium, C 47/08, EU:C:2011:334,
paragraph 85).
74 Furthermore, it is not in dispute, as has been stated in paragraph 51

of the present judgment, that notaries practise their profession in
conditions of competition, which is not characteristic of the exercise of
official authority (see, by analogy, judgment in Commission v Belgium,
C 47/08, EU:C:2011:334, paragraph 117).

75 Finally, the argument which the Republic of Latvia bases on Directive
2005/36 not being applicable to notaries also fails to convince. The fact
that the legislature has chosen to exclude notarial activities from the
scope of a given measure, in this case that directive, does not mean
that those activities necessarily fall under the exception provided for in
the first paragraph of Article 51 TFEU (see, to that effect, inter alia,
judgment in Commission v Belgium, C 47/08, EU:C:2011:334,
paragraph 119).
13.2 The derogations and “objective justification”
Article 52 TFEU provides for derogations from freedom of establishment on the

grounds of public policy, health and security. These derogations have been
narrowly interpreted by the CoJ.
The Citizenship Directive (Directive 2004/38 EC) regulates the application of

these derogations from freedom of establishment and services to natural
persons. These derogations were considered in the context of free movement
of workers. Articles 27-33 are the relevant provisions of the Directive.
Derogations in respect of companies are governed by the Treaty and the
general principles of EU Law. Article 16 of the Services Directive is also
relevant.
Craig and de Búrca state (at 826):
As is the case for workers and establishment, once a potential

restriction on free movement of services is found to exist, it is open to
Member States to try to justify it either under the Treaty exceptions or
under a broader category of Court-developed exceptions. Along with
the express exceptions … the [CoJ] has developed a justificatory test
for workers, services and establishment alike, which is similar to the
Cassis de Dijon ‘rule of reason’ in the free movement of goods context.”
In the context of free movement of persons, the CoJ speaks of “objective

justification.”
Van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid

[1974] ECR 1299 (Case 33/74) the CoJ held:
12. However, taking into account the particular nature of the

services to be provided, specific requirements imposed on the
person providing the service cannot be considered incompatible
with the treaty where they have as their purpose the application
of professional rules justified by the general good - in particular
rules relating to organization, qualifications, professional ethics,
supervision and liability - which are binding upon any person
established in the state in which the service is provided, where
the person providing the service would escape from the ambit of
those rules being established in another Member State .
13. Likewise, a Member State cannot be denied the right to take

measures to prevent the exercise by a person providing services
whose activity is entirely or principally directed towards its
territory of the freedom guaranteed by [now Article 56 TFEU] for
the purpose of avoiding the professional rules of conduct which

would be applicable to him if he were established within that
state; such a situation may be subject to judicial control under
the provisions of the chapter relating to the right of
establishment and not of that on the provision of services .
14. In accordance with these principles, the requirement that

persons whose functions are to assist the administration of
justice must be permanently established for professional
purposes within the jurisdiction of certain courts or tribunals
cannot be considered incompatible with the provisions of
[Articles 56 and 57 TFEU], where such requirement is
objectively justified by the need to ensure observance of
professional rules of conduct connected, in particular, with the
administration of justice and with respect for professional ethics
.
15. That cannot, however, be the case when the provision of certain
services in a Member State is not subject to any sort of
qualification or professional regulation and when the
requirement of habitual residence is fixed by reference to the
territory of the state in question.
16. In relation to a professional activity the exercise of which is

similarly unrestricted within the territory of a particular member
state, the requirement of residence within that state constitutes
a restriction which is incompatible with [now Articles 56 and 57
TFEU] of the Treaty if the administration of justice can
satisfactorily be ensured by measures which are less restrictive,
such as the choosing of an address for service.
The CoJ has also held that restrictive measures must respect fundamental
rights; Elliniki Radiophonia Tileorassi AE v. Dimotiki Etairia Pliroforissis [1991]
ECR I 2925 (Case C-260/89), Vereinigte Familiapress Zeitungsverlags-und
Vertreibs GmbH v. Heinrich Bauer Verlag [1997] ECR I 3689 (Case 368/95)
and Carpenter v. Home Secretary [2002] ECR I 6279 (Case C-260/00).
In Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet and Others

[2007] ECR I 11767 (Case C-341/05), the CoJ held at paragraphs 116-120
that Articles 56 and 57 TFEU preclude a prohibition in a Member State against
trade unions undertaking collective action with the aim of having a collective
agreement between other parties set aside or amended from being subject to
the condition that such action must relate to terms and conditions of
employment to which the national law applies directly. Such a prohibition
discriminates against undertakings which post workers to the host Member
State in that it does not take account, whatever their content, of collective
agreements by which those undertakings are already bound in the Member
State in which they are established and treats them in the same way as national
undertakings which have not concluded a collective agreement. Such
discrimination cannot be justified either by the aim of allowing trade unions to
take action to ensure that all employers active on the national labour market
pay wages and apply other terms and conditions of employment in line with
those usual in that Member State, or by the aim of creating a climate of fair
competition, on an equal basis, between national employers and entrepreneurs
from other Member States. Those considerations do not constitute grounds of

public policy, public security, or public health within the meaning of Article 52
TFEU, applied in conjunction with Article 62 TFEU.
Garkalns SIA v. Rigas dome [2012] ECR I nyr, 19 July 2012 (Case C-470/11)
concerned a refusal by the Latvian authorities to permit Garkalns to open an
amusement arcade in a shopping centre in Riga. The CoJ determined that
Article 49 TFEU did not preclude national legislation which confers on local
authorities a broad discretion in enabling them to refuse authorisation to open
a casino, an arcade or bingo hall on grounds of substantial impairment of the
interests of the State and of the residents of the administrative area concerned,
provided the legislation is genuinely intended to reduce opportunities for
gambling and to limit activities in that domain in a consistent and systematic
manner or to ensure the maintenance of public order and in so far as the
competent authorities exercise their powers of discretion in a transparent
manner, so that the impartiality of the authorisation procedures can be
monitored, it being for the national court to determine whether those conditions
are satisfied.
It was noted above that in Commission v. Italy [2009] ECR I 4103 (Case C-
531/06) and in Apothekerkammer des Saarlandes v. Saarland [2009] ECR I
4171 (Case C-171 and C-172/07), an Italian rule restricting the operating of
pharmacies to pharmacists was caught by Article 49 TFEU, constituted a
restriction on the freedom of establishment and required objective justification.
The legislation was justifiable for securing the objective of ensuring that the
provision of medicinal products to the public is reliable and of good quality and,
therefore, that public health is protected. The CoJ then considered whether the
objective might be obtained effectively by less restrictive means or whether the
restrictions went beyond what was necessary for achieving that objective. The
CoJ concluded that no less restrictive mechanism had been identified.
Therefore, the national legislation was necessary and justified the restriction on
establishment.
In Google Ireland (C-482/18, EU:C:2020:141), the Grand Chamber of the Court

held that while the freedom to provide services guaranteed by Article 56 TFEU
does not preclude Hungarian legislation imposing an obligation on suppliers of
advertising services established in a Member State other than Hungary to
submit a tax declaration in respect of their liability to Hungarian advertising tax;
the principle precludes the part of Hungarian legislation which fines suppliers
of advertising services established in a Member State other than Hungary for
non-compliance with the obligation to submit a tax declaration via a series of
fines issued within several days and capable of amounting to several million
euro.
The Court stated that the competent authority should first give the suppliers
time to comply with their obligations or the opportunity to submit their
observations or examine the seriousness of the infringement, before adopting
its final decision on fines. The Court further observed that the amount of the
fine imposed on a supplier of advertising services established in Hungary that
has failed to comply is significantly less and is not increased, in the event of
continued failure to comply with such an obligation.
Google Ireland, incorporated under Irish law but carrying on an activity subject
to the Hungarian tax on advertising, had failed to comply with its obligation to
submit a declaration in respect of that tax. It was initially fined approximately €
31, 000 and then, within a few days, received additional fines, which in total

amounted € 3,100, 000, which corresponded to the maximum fine which could
be imposed under Hungarian legislation for non-compliance with the obligation
to submit a tax declaration.
Google Ireland brought an action before the Budapest Administrative and

Labour Court contesting the compatibility of both the obligation for foreign
suppliers of advertising services to submit a tax declaration and of the system
of penalties connected with the failure to submit such a declaration with EU law.
The Court made a preliminary ruling to the CJEU and it was held, among other
things, that the principle of freedom to provide services precludes any national
rules which may make the provision of services between Member States more
difficult than the provision of services purely within a Member State.
That principle thus requires the abolition of any restriction on the freedom to
provide services imposed on the ground that the person providing a service is
established in a Member State other than that in which the service is provided.
As regards penalties in the field of taxation, the Court noted:
37 . . . although systems of penalties in the field of taxation fall within

the competencies of the Member States in the absence of
harmonisation at EU level, such systems should not have the effect
of jeopardising the freedoms provided for by the FEU Treaty (see,
to that effect, judgment of 25 February 1988, Drexl, 299/86,
The Court held that the system of penalties at issue
43 . . . enables significantly higher fines to be issued than those

resulting from the application of Article 172 of the Law on general tax
procedures in the event of infringement, by a supplier of advertising
services established in Hungary, of its obligation to register laid down
in Article 17(1)(b) of that law. Furthermore, the amount of the fines
imposed under that system is not increased for continued non-
compliance with the corresponding obligation to register to such an
extent, nor necessarily within such a short period of time, as that applied
under the system of penalties laid down in the Law on the taxation of
advertisements.
44 Having regard to the difference in treatment introduced between

suppliers of advertising services according to whether or not they are
already registered for tax purposes in Hungary, the system of
penalties at issue in the main proceedings constitutes a restriction
on the freedom to provide services, which is, in principle,
As to whether this contravention of Article 56 TFEU was capable of justification,

the Court held:
45 Such a restriction may nevertheless be warranted if it is justified by

overriding reasons of public interest and, provided that that is the
case, its application is suitable for securing the attainment of the

objective which it pursues and does not go beyond what is
necessary in order to attain it…
46 In the present case, in order to justify that restriction, the Hungarian

Government formally invokes the need to preserve the integrity of
its tax regime, but essentially relies on grounds based on ensuring
the effectiveness of fiscal supervision and the effective collection
of tax.
47 In that regard, the Court has previously accepted that the need
to ensure the effectiveness of fiscal supervision and the effective
collection of tax may constitute overriding reasons in the public
interest capable of justifying a restriction on the freedom to
provide services. It has also held that the imposition of penalties,
including criminal penalties, may be considered to be necessary in
order to ensure compliance with national rules, subject, however,
to the condition that the nature and amount of the penalty imposed
is, in each individual case, proportionate to the gravity of the
infringement which it is designed to penalise …
48 . . . issuing fines of a sufficiently high amount to penalise failure to

comply with the obligation to submit a tax declaration, laid down in
Article 7/B(1) of that law, is capable of deterring the suppliers of
advertising services subject to such an obligation from infringing
it and thus preventing the Member State where the tax is levied
from being deprived of the possibility of policing effectively the
conditions for the application of, and exemption from, the tax in
question.
However, the Court held that the system of penalties at issue was
disproportionate as the system does not provide for any link between the
exponential increase, within particularly short periods of time, in the total amount
of the fines and the seriousness of the failure to submit a tax declaration, and the
fact that the taxpayer concerned would in effect be unable to avoid being subject
to the maximum amount of the fine by complying with its obligation to submit a
tax declaration prior to receiving the last decision to issue a fine by which that
amount is reached.
49 . . . as far as concerns the amount of the fines incurred in the event

of failure to comply with the obligation to submit a tax declaration, it
must be found that that legislation introduces a system of penalties
under which a supplier who has not complied with that administrative
formality may, within a few days, at intervals of only one day apart, be
fined, from the second day, in amounts which are tripled in relation to
the amount of the previous fine if it is still found that that obligation has
not been complied with, thereby resulting in a total amount of
HUF 1 000 000 000 (approximately EUR 3 100 000), without the
competent authority giving the supplier the time necessary to comply
with its obligations or the opportunity to submit its observations, or
having itself examined the seriousness of the infringement. In those
circumstances, such legislation is disproportionate.

of Ireland, 2008), chapter 2
chapter 9
2011), chapters 17 and 18
o Nic Shuibhne, “Margins of Appreciation: National Values, Fundamental
Rights and EC Free Movement Law” (2009) 34 ELRev 230

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European Union Law

The main textbooks about EU Law are:

As supplemental reading, consult:

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All secondary EC legislation is contained in the Official Journal of the European

Link to OJ: http://eur-lex.europa.eu/oj/direct-access.html

The longstanding method of citing individual cases was as follows:

C (Court of Justice)–No. of case/Year (last 2 digits) Parties

• “ECLI”: to identify the identifier as being a European Case Law Identifier;

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• “EU” indicates that it is a decision delivered by an EU Court or Tribunal ;

Each case will still be allocated a case number.

Guidance on using the ECLI

Case with a report law citation:

Case without a law report citation:

Paragraphs in judgments are cited as, e.g., EU:C:2005:446, para 22.

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Searching using EUR-Lex

2. This returns all documents connected with the case

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o CMLRev – Common Market Law Review

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EU Institutions, Agencies, and Bodies

Council of the European Union: www.consilium.europa.eu

European Parliament: www.europarl.europa.eu. This is an information service

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European Movement: www.europeanmovement.ie. This is the site of an independent

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TABLE OF CONTENTS ................................................................................ 11

CHAPTER 1 HISTORY OF EUROPEAN INTEGRATION AND THE TREATIES

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CHAPTER 2 THE EU INSTITUTIONS........................................................... 85

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CHAPTER 3 EU LEGAL ACTS AND LAW-MAKING ................................. 117

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CHAPTER 4 DIRECT EFFECT, INDIRECT EFFECT (THE DUTY OF

CHAPTER 5 STATE LIABILITY IN TORT FOR BREACHES OF EU LAW 153

CHAPTER 6 THE DOCTRINE OF SUPREMACY OR PRIMACY ............... 165

CHAPTER 7 HUMAN RIGHTS IN EU LAW ................................................ 201

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CHAPTER 8 PRELIMINARY REFERENCES.............................................. 225

CHAPTER 9 INFRINGEMENT ACTIONS AGAINST MEMBER STATES .. 261

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CHAPTER 10 REVIEWING EUROPEAN UNION ACTS: ARTICLE 263 TFEU

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CHAPTER 12 FREE MOVEMENT OF GOODS: QUANTITATIVE

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CHAPTER 13 FREE MOVEMENT OF WORKERS ..................................... 389

CHAPTER 14 EU CITIZENSHIP ................................................................. 431

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CHAPTER 15 FREEDOM OF ESTABLISHMENT AND SERVICES ........... 487

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22 © The Honorable Society of King’s Inns 2021-2022

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