Basic Principles EUlaw

BASIC PRINCIPLES
OF EU LAW
SUMMER COURSE, UCY 2022
WHY BOTHER?
• Original Perception: an exotic, specialised area with little practical importance
outside its boarders  like Public International Law
• Reality:dramatic impact on national legal systems
• No area of national law remains untouched by EU law (consumer, company,
competition, discrimination, environmental, banking, criminal, contract etc.)
• It is impossible to call yourself a lawyer and be a purely domestic law specialist
a museum item
• Challenges: different type of Institutions, sources of law, style of legal sources,
volume of materials
Dr. Constantinos Kombos, Associate Professor of Public and EU Law 2
Summer Course Relevance
• It is impossible to engage into the study of European Commercial Law
without having a basic understanding of EU law and of its basic principles
• We are setting the framework & the foundation for the more specialised
modules
• Approach:
1. Simplification of complex concepts
2. Economy of time, thus selectivity
EU LAW-ISRAEL

Why relevant to non-EU
nationals?
• Doing business with the EU
• EU and Israel established diplomatic relations in 1959
• 1964 trade agreement, amended in 1970--> then Cooperation
Agreement of 1975 then replaced by the….
• EU-Israel Association Agreement 1995 the legal framework for EU-
Israel relations Following ratification by the then 15 Member States, the
European Parliament and the Knesset, entered force on 1 June 2000.
So, a Long-standing relation & EU is Israel’s biggest trading partner
Details
• An Association Agreement (AA) is a bilateral agreement/Treaty
between the EU and a third country.
• In the context of accession to the EU, it serves as the basis for
implementation of the accession process.
• Such agreements form part of two EU policies Stabilisation and
Association Process (SAP) and European Neighbourhood Policy
(ENP)
• Re Israel ENP
Details
• The EU concludes AAs in exchange for commitments to political, economic, trade, or human
rights reform in a country.
• In exchange, the country may be offered tariff-free access to some or all EU markets (industrial
goods, agricultural products, etc.), and financial or technical assistance.
• Legal basis: Article 217 TFEU (former art. 310 and art. 238 TEC)
• Intention: to establish close economic and political cooperation (more than simple cooperation)
• Function: establishes bodies for the management of the cooperation, competent to take
decisions that bind the parties
• Advantages: Offering Most Favoured Nation treatment; providing for a privileged relationship
• Most often, the AA replaces a cooperation agreement thereby intensifying the relations
Provisions on regular political dialogue, on
freedom of establishment and
liberalisation of services, the free
movement of capital and competition
rules, the strengthening of economic
cooperation and cooperation on social
Content matters.
Establishes an Association Council to be
of 1995 supported by an Association Committee.
AA Reinforces the arrangements for free trade in

industrial products which had been in force since
the late 1970s. The agreement also mentions
many other areas of cooperation that are open to
negotiation.

CONTENTS OF AA
• Art 55 stipulates: “The Parties shall use their best endeavours to
approximate their respective legislations in order to facilitate the
implementation of this Agreement”
• Soft law commitment & limited to implementation of AA, not generally &
not obliging Israel to approximate but both parties
• Israel has moved in the direction of EU legislation in certain areas,
including standards, competition law, environmental law, animal protection
and money laundering legislation  at legislative, not judicial level

Content of 1995 AA
• The agreement states that the respect for human rights and democratic
principles guides the internal and international policy of both Israel and the
EU and constitutes an essential and positive element of the Agreement.
• At Israel's request, there is a Joint Declaration on the importance both
parties attach to the struggle against xenophobia, anti-Semitism and racism.
• On 4 November 2009 the EC and Israel signed the new agreement
concerning reciprocal liberalisation measures on agricultural products,
processed agricultural products and fish and fishery products. It entered into
force on 1 January 2010.
Other
• Agreement on scientific and technical cooperation
• On 8 June 2014, Israel and the European Union signed the agreement
associating Israel to the Horizon 2020 – Framework Programme for Research
and Innovation (2014-2020). The agreement provides Israeli researchers,
universities and companies with full access to the Horizon 2020 Programme.
• Agreements on Procurement by Telecommunications Operators and on
Government Procurement
• The two Agreements came into force on 1 August 1997.

Other
• Agreement on Conformity Assessment and Acceptance of industrial

products (ACAA)
• The EU and Israel signed on 6 May 2010 an Agreement which entered into
force on 19.1.2013.
• The Agreement contains an annex on good manufacturing practices for
pharmaceutical products which will allow for EU-certified pharmaceuticals to
be placed on Israel's market and vice-versa, without additional certification.

Common Customs Tariff (CCT)
• Since the completion of the internal market, goods can circulate freely between Member
States.
• CCT applies to the import of goods across the external borders of the EU.
• The tariff is common to all EU members, but the rates of duty differ from one kind of
import to another depending on what they are and where they come from.
• The rates depend on the economic sensitivity of products & origin.
• Anti-dumping duties
• Through the tariff, the EU applies the principle that domestic producers should be able to
compete fairly and equally on the internal market with manufacturers exporting from other
countries.
CJEU and Israel

Case C‑386/08, Brita
• Brita is established in Germany.
• It imports drink-makers for sparkling water, as well as
accessories and syrups, all produced by an Israeli
supplier, Soda-Club Ltd, at a manufacturing site in the
West Bank.
• Brita filed 62 customs declarations between February and
June 2002, declaring that these goods originated in the
State of Israel via certificates of origin issued by Israeli
customs authorities
• German customs approved, then inquired about origin
without getting a reply, finally rejected request for duty-free
treatment  imposed duties
• Reference by Hamburg Finance Court to CJEU
• During the 1990s, the EC concluded two Euro-Mediterranean Association
Agreements:
1. EC-Israel Association Agreement, approved by Decision 2000/384/EC
2. EC-PLO Association Agreement, approved by Council Decision 97/430/EC of 2
June 1997
• Each of these agreements defines its product scope through rules of origin &
grants preferential treatment re customs
• Requirement submit a certification of origin standard form issued by the
relevant customs authorities.
• Main issue: whether Israel can

issue a certificate of origin for goods
manufactured in whole or in part on
the West Bank
Advocate-General Yves Bot's
Opinion
• Examined the EC-Israel Agreement, the EC-PLO Agreement, and
the 1997 Israeli-Palestinian Interim Agreement on the West Bank
and the Gaza Strip (a.k.a. “Oslo II”), and suggested, among other
things, that the territories of the West Bank and Gaza are not part
of the territory of the State of Israel.
• Thus, Israel cannot issue valid certificates for goods originating in
the West Bank.

• The ECJ reached the same outcome, but on different grounds.
• It avoided any ruling interpreting the phrase "territory of the State of Israel" in
the EC-Israel Agreement.
• Instead, it relied on the existence of two separate EC agreements with
mutually exclusive territorial scope-the EC-Israel Agreement and the EC-PLO
Agreement.
• Relied on an earlier ruling in Case C-432/92, Anastasiou only the named
authorities of the named state-party can issue certificates (difference: no AA
with occupied Cyprus)
• Both Agreements require that proof of origin be produced as a condition of
preferential treatment for goods.
• the EC-Israel Agreement could not authorize Israeli authorities to issue
certificates contrary to the EC-PLO Agreement.
• the territorial question as having been decided the moment the EC concluded
its Association Agreement with the PLO.
• Thus, on the basis of certificates issued by the Palestinian authorities, products
originating in the West Bank cannot be allowed preferential treatment under the
EC-Israel Agreement but only under the EC-PLO Agreement
Case C-263/18, Psagot Winery
(12 November 2019)
• Preliminary reference by French Conseil d’ Etat
• EU Regulation No 1169/2011, the primary piece of EU legislation
relating to food information and labelling requires labels to include
place of origin

European Commission issued in
2015 an Interpretative Notice
• ‘the European Union, in line with international law, does not recognise Israel’s sovereignty over the
territories occupied by Israel since June 1967, namely the Golan Heights, the Gaza Strip and the
West Bank, including East Jerusalem, and does not consider them to be part of Israel’s territory’
• For products from Palestine that do not originate from settlements, an indication which does not
mislead about the geographical origin, while corresponding to international practice, could be
“product from the West Bank (Palestinian product)”, “product from Gaza” or “product from Palestine”.
• For products from the West Bank or the Golan Heights that originate from settlements, an indication
limited to “product from the Golan Heights” or “product from the West Bank” would not be
acceptable.
• Therefore, expressions such as “product from the Golan Heights (Israeli settlement)” or “product
from the West Bank (Israeli settlement)” could be used.’

DECISION OF THE COURT
• French Ministry adopted that approach
• Psagot Winery challenged the French ministerial decision
• CJEU: “ foodstuffs originating in a territory occupied by the State of
Israel must bear not only the indication of that territory but also, where
those foodstuffs come from a locality or a group of localities
constituting an Israeli settlement within that territory, the indication of
that provenance.”
• Note: 5 May 2021, the Federal Court of Appeal of Canada followed approach
in Dr. David Kattenburg & Psagot Winery 2019 FC 1003
COMPARATIVE LAW,
ISRAEL AND EU LAW

• “Comparative law—whether
international or national—is most
important ... Its power lies in that it
expands the interpretative horizon and
field of vision. It has the power to instruct
the interpreter as to the normative
HCJ 4128/02 Adam, Teva V’Din— potential of the legal system. Its
Israeli Association for Environmental limitations stem from the peculiar nature
Protection v The Prime Minister (2004) of every legal system, its institutions and
PD 58(3)503, 515‒16.
the ideology which characterizes it and the
President of the Israeli Supreme Court,
Aharon Barak
way it treats the individual and the society.
Indeed, comparative law is like an
experienced friend. It is good to listen
to his good advice, but it should not
replace one’s own discretion.”
Reich, Arie, 'The Impact of the Court of
Justice of the European Union on the
Israeli Legal System', in Arie Reich, and
Hans-W. Micklitz (eds), The Impact of the
Court 1977‒ 1987‒96 1997‒ 06 2007‒ Total European Court of Justice on
Neighbouring Countries (OUP, 2020), pp.
86 19 265-304.
S.C. 1/1 1/3 3/3 23/56 28/63
District - 1(1) 5(6) 12(31) 18(38)

Adm. - - - 5(8) 5(8)
• CJEU citation by
Mag. - 1/1 - 1/1 2/2 Israeli tribunals
Lab. 1/4 2/6 4/12 5/9 12/31 (1977– 2019)
Antitrust - 2/7 11/22 8/41 21/70
Patent Registrar - - 11/20 13/29 24/49
• Instances
Small claims - - - 6/7 6/7 cited/number of
Total p.a. 2/5 7/18 34/63 73/182 116/268 CJEU decisions cited

p. 279
• “The tribunal that cites CJEU decisions most frequently is the Supreme
Court”
• “One can also see a sharp increase in its citation in the past decade, when
the vast majority of its CJEU citations took place”.
• “However, compared to the frequency of use of foreign precedents in general
by the Supreme Court, the number of cases citing the CJEU is not very high”
• “Also, in relation to the total number of relevant Supreme Court judgments
issued in this period, the number is very low”

Case Field of Law Times Cited
Hoffman- La Roche Competition law 11
v Commission
1979
Michelin v Competition law 6

Commission
1983
Case C- 363/ Trademarks 6

99 Koninklijke
KPN Nederland
NV
2004
HCJ 698/ 80 Qawasmeh v Minister of
Defence (1980)
• First ever
• Mayors of Hebron and Halhul in the West Bank had been deported to Lebanon following
the murders of six Jews in Hebron
• No hearing, quashed, hearing, decision to deport challenged
• Dissenting judge (Haim Cohn):Article 49 of the Fourth Geneva Convention of 1949, which
forbids the deportation of protected persons from an occupied territory, does indeed reflect
customary international law
• Cites several foreign and international judgments and the writings of some international
jurists. Among the judgments is Case C-41/ 74 Yvonne Van Duyn v Home Office “under
international law a state is precluded from refusing its own nationals the right of entry or
residence” §22
Hearing 46/ 73- 3 (National) Dr Naomi Nevo v
General Federation of Labour in Israel PDA
18(1)197 (1986)
• retirement age for men was sixty- five and for women sixty
• She was a sociologist with the Jewish Agency for Israel
• Labour Court 5-2
• dismissed her appeal, holding that the differentiation between men and women in
relation to the age of retirement is not a wrongful discriminatory measure
• court cited and distinguished the ECJ ruling in Marshall v Southampton and
South-west Hampshire Area Health Authority (1986): in Israel retirement under a
collective agreement which provides the retiree with an agreed pension is not a
dismissal, but rather fulfilment of the agreement
HCJ 104/ 87 Dr Naomi Nevo v
National Labour Court (1990)
• rulings of labour court overturned
• Court ruled that women could not be compelled to retire earlier than men. The Court
therefore declared the provision to this effect in the collective agreement and its pension
plan as totally void.
• relied on the Marshall decision ‘compelling and leading example’
• the Court cited another ECJ case, namely Defrenne v SABENA, by ruling that its decision
should only have prospective effect
• the Knesset passed a law that changed the legal situation and gave women the option to
retire at the same age as men The Equal Retirement Age for Male and Female
Workers Law, 5747- 1987, passed in the Knesset on 17 March 1987.
Essential to Become Familiar
with the Principles of the EU

Structure of Teaching Block
1. History, Institutions, Sources of EU Law
2. Constitutional Principles: Primacy of EU law over conflicting
national law
3. Protection of Human Rights
4. Auxiliary Principles and Procedures: State Liability & Preliminary
Reference Procedure
5. Internal Market and Free Movement of Goods
Historical Origins
• The idea of a Unified Europe has a long history
1. Forum of the Pan-European Union 1923
Count Richard Kalergimanifesto Paneuropaunification of
Christian Europe based on social responsibility, christianity,
liberalism
• Failed but membership included Konrad Adenauer and
Georges Pompidou
• Later had huge influence
Historical Origins
2. Briand Plan 1929 (Prime Minister France)
French proposal for a European partnership of States in the form of a
Confederation
3. Memorandum by Alexis Lèger 1930 (foreign minister's directeur de
cabinet):
Made a more specific-technocratic proposalcommon army etc
• Failure Premature attempts in a period where nationalism was
dominant
Deciding Moment
• The end of WW II in 1945 and the Catastrophe
• TaskHow to ensure that this would never happened again?
• Answers:
1. International collaboration and partnership instead of national
domination
2. Equality
Founders
Founding Fathers
Konrad Adenauer Alcide De Gasperi
Winston Churchill
Robert Schuman Jean Monnet

The Formula
• Jean Monnet/Robert Schuman: need for a limited but decisive
agreement
• Functional Semi-Federalism “but not quite there”
• Target Setting and Chain Reaction Gradual Process
• Central the idea of Partnership of Equals in the Area of the Economy
• Create a new Structure and place under its authority the control of key
resources
• Jean Monnet: French diplomatBackgroundMarket Oriented
Schuman 1950 (French foreign
minister)
• “Europe will not be made all at once, or according to a single plan. It will be
built through concrete achievements which first create a de facto solidarity”
• “The pooling of coal and steel production... 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 constant victims”
• “By pooling basic production and by instituting a new High Authority,
whose decisions will bind France, Germany and other member countries,
this proposal will lead to the realization of the first concrete foundation of a
European federation indispensable to the preservation of peace”.
History
• European Community of Coal and Steel 1951
• Why these resources?
• A common market for coal and steel (BE, FR, FRG, NL,
Lux, IT) - supranational
• High Authority, Council of Ministers, Assembly, Court

History
• Spaak Report 1956
• Expansion of the Model to other areas of the Economy Euratom
Community & European Economic CommunityTREATY OF
ROME 1957
• A common market for all goods and eventually also for services,
capital and people; Free Competition; Gradual abolition of custom
duties

Preamble Treaty of Rome
• The 6 signatories of the Treaty declare that they

are:
• “…determined to lay the foundations of an ever
closer union among the peoples of Europe…”
• Therefore, scope for further future integration
Year of entry Countries
France, Germany, Italy, Luxembourg, Netherlands,

01/01/1958
Belgium
01/01/1973 Denmark, Ireland, UK (BREXIT)
01/01/1981 Greece
01/01/1986 Portugal, Spain
01/01/1995 Austria, Finland, Sweden
Cyprus, Czech Republic, Estonia, Hungary, Latvia,

01/05/2004
Lithuania, Malta, Poland, Slovakia, Slovenia
01/01/2007 Bulgaria, Romania
01/07/2013 Croatia

The Development of the Treaties
1952 The European Coal and Steel Community
1958 The treaties of Rome:

• The European Economic Community
• The European Atomic Energy Community
(EURATOM)
1987 The European Single Act: the Single Market
1993 Treaty on European Union - Maastricht
1999 Treaty of Amsterdam
2003 Treaty of Nice
2009 Treaty of Lisbon

Important Moments and Facts
• 1979 Direct Election of Members of the European Parliament
• 1992 introduction of European Citizenship and first reference
(general) to the protection of human rights
• January 1999 introduction of the Euro (currently 19 MSs)
• Rejection of Treaty establishing a Constitution for Europe 2004
(France & Netherlands)

The Development of the Treaties
• 1986 – Single European Act
• Means to realise the internal market
• more decisions could be taken through qualified majority – health and safety
• 1992 Maastricht European Union
• Economic and Monetary Union, Foreign & Security Policy, Justice and Home affairs, European citizenship
• 1998 Amsterdam Treaty –renumbering
• 2001 Nice Treaty /EU Charter of Fundamental Rights
• 2007/09 Lisbon Treaty
• The EU Charter of Fundamental Rights is given the same status as the Treaty
Current State of Affairs
• The treaty on the European Union (TEU)

• The treaty on the Functioning of the European Union (TFEU)
• The EU Charter on Fundamental Rights
• The various other Treaties mentioned before are amendments to

the above basic Treaties

The EU THE EU INSTITUTIONS AND BODIES
European Council (summit)
Council of Ministers
European Parliament (The Council) European Commission
Court of Court of Economic and Social

Justice Auditors Committee Committee of the Regions
European Investment Bank Agencies European Central Bank

Art 14 TEU
Composition
The
• Each MS has a kind of proportional
number of seats
• The disposal of those seats are elected
European
on a national basis.
• The EP elected MEP are divided into 7
Parliament
EP political groupings
• 705 MEPs
• Term 5 years

EP
• Tasks
• Dismissal and Appointment power (in toto)
• Legislative
• (co-legislator with the Council) exercise legislative powers
• Supervisory powers
• accountability for the union institutions
• Budget
The Council
• Art 16 TEU
• A representative of each Member State at ministerial level who is authorized to
commit the government of that State
• Ten council formations
• Deals with legislative and non-legislative issues
• Presidency – one MS 6 months (currently France), principle of equal rotation,
except for
• the Foreign Affairs Council, a permanent High Representative of the Union
for foreign affairs (Josep Borrell)
• The current trio is made up of the presidencies of the France, Czech
Republic, Sweden (till July 23)
The Council
• Powers
• Legislative –
• has to vote its approval of virtually all Commission
legislative initiatives before they become law
• Ask the Commission to conduct studies and
proposals
• Delegate powers to the Commission
European Council
• Art 15 TEU
• Composition
• Heads of Government, President (2.5 years) Charles Michel,
plus President of the Commission
• Tasks
• Defines the general political direction and priorities

The European Commission
• Composition
• President Ursula von der Leyen, DGs run by Commissioners (from MS), EU-
officials and civil servants
• Powers, art 17 TEU
• Promote the general interest of the EU and take appropriate initiatives to that end
• Committed to integration
• Legislative
• Right to legislative initiative
• Legislative plan for any single year
• Develop general policy strategies
The European Commission
• Administrative
• overview the implementation of EU-rules, MS reporting
• Executive
• Important role for the budget
• Agricultural policy
• External relations
• Judicial
• Brings action against MS when they are in breach of EU law (258 TFEU)
• Investigator initial judge of treaty violations
COURT

The Court of Justice of the
European Union
• Art 19 TEU
• Court of Justice of the European Union
• Court of Justice –
• 1 judge/MS, 11 Advocate Generals,
• Art 258 TFEU – enforcement action
• Art 263 TFEU – review of legality
• Art 267 TFEU – preliminary rulings
• General Court
• 2 judges/MS
•Ensures price stability
•Controls money supply and
The decides interest rates
European •Supervises that banks are safe
Central
Bank: •Works independently from
governments
managing
the euro
•President Christine Lagarde
LEGISLATIVE PROCESS (SIMPLIFIED) are made
Citizens, interest groups, experts: discuss, consult
Commission: makes formal proposal
Parliament and Council of Ministers: decide jointly
National or local authorities: implement
Commission and Court of Justice: monitor implementation

What gives the EU competence to
act?
The EU can only act within the limits of the powers
conferred to it
• The competence must be conferred to it by the
Treaties, art 5.2 TEU
• Otherwise, it remains with the MS, art 4 TEU
• Sometimes difficult to read out the scope of the
competence – the case law of the CJEU must be taken
into account

The legislative acts
• Art 288 TFEU
• Regulations – directly applicable in the MS
• Directives – binding as to the results to be achieved – MS can
choose form and method
• Decisions- binding in its entirety on those who it affects
• Recommendations - no binding force

Hierarchy of norms
• Treaties and the EU Charter of Fundamental Rights
• General principles of Law
• Proportionality, fundamental rights, legal certainty, legitimate
expectations
• Legislative acts
• Other acts

Principle of sincere cooperation
• Art 4.3 TEU
• “Pursuant to the principle of sincere cooperation, the Union and the Member
States shall, in full mutual respect, assist each other in carrying out tasks
which flow from the Treaties.
• The Member States shall take any appropriate measure, general or particular,
to ensure fulfillment of the obligations arising out of the Treaties or resulting
from the acts of the institutions of the Union.
• The Member States shall facilitate the achievement of the Union's tasks and
refrain from any measure which could jeopardise the attainment of the Union's
objectives.”
Member State responsibility
• Art 291 TFEU
• MS shall adopt all measures necessary to implement legally binding Union
acts
• And if a Member State fails….
• The Member State can violate its obligations towards
• the EU and
• towards a citizen if he or she is deprived of rights he or she is supposed
to be granted
If the MS fails
• The Eur. Com. or a MS can initiate an enforcement action art
258 -259 TFEU
• The CJEU can then conclude whether the MS has fulfilled
their obligations or not
• Pecuniary penalty payment can be imposed, art 260 TFEU
• Failure to transpose or to implement Union legislation – often
inadequate implementation

The Principle of Primacy of EU
law
• Supremacy or Primacy?
• Meaning of Primacy:
• Priority, precedent, prevail
• Conflict between a National and a Community norm: which
prevails
• The problem: Silence of the Treaty-why?
• CJEU’s creation
Practical significance of the
principle
• Existential necessity: ‘Chaos theory’

• Effectiveness and uniformity: ‘effet utile’
• Key provisions would become meaningless

Bi-dimensional Nature of the
Principle
• CJEU’s Dimension: the elaboration of the parameters of the
doctrine by the CJEU
• National Dimension: the full reception of the doctrine by the national
constitutional orders
• A dynamic process

Primacy from the CJEU’s
Perspective
The Two Constitutional Pillars:
1. Case 26/62, Van Gend en Loos [1963]ECR1
• Dutch importer of ureaformaldehyde (glue) objected imposition of tariff on
import of that product by Dutch customs authorities.
• claimed that new tariff violated EEC Treaty art. 12 which required Member
States to refrain from increasing duties on imports which they already
apply in trade
• Issue: Whether an individual may invoke art. 12 before national court
Perspective
2.Case 6/64, Costa v. ENEL [1964] ECR 585
•Flaminio Costa was an Italian citizen who owned shares of an electricity company
•1962 Italy had nationalized the production and distribution of electric energy and created
ENEL (National Electricity Board).
•Costa was opposed to the nationalization and decided not pay the bill of a symbolic amount:
1,925 lire (€0.99). Was sued for nonpayment.
•Claim: EU law prohibited nationalization
•The Italian Government stated that the national law, under which they had nationalized
mentioned electricity company, was enacted after the incorporation of the EEC Treaty, so that
it is the Italian law that should have the priority over it.
Perspective
• Van Gend en Loos
• …the EEC Treaty is more than an agreement which merely creates
mutual obligations between the contracting states. […]
• … the Community constitutes a new legal order of international law
for the benefit of which the Member States have limited their
sovereign rights, albeit within limited fields, and the subjects of which
comprise not only Member States but also their nationals.
• The status of Community law in the national legal systems is not a
matter of domestic constitutional law, but matter of Community law
itself.
The second constitutional pillar:
Costa v. ENEL
• Costa v. ENEL
‘The law stemming from the Treaty, an independent source
of law, cannot, because of its special and original nature,
be overridden by domestic provisions, however framed,
without being deprived of its character as Community law
and without the legal basis of the Community itself being
called into question’.
The Constitutional Theory
• Justifications in the two cases:
1. Own legal order/Sui Generis nature of the Treaty: exists independently of
other categorizations because of its uniqueness or due to specific creation
2. MSs Transfer of sovereignty
3. Pragmatic and purposive arguments:
effectiveness and uniformity undermined
4. Protection of the Individual

Critique of Constitutional Theory
• ‘Or else’ reasoning

• Purposive approach
• Weak Textual argument
• Policy factors the main reasons
• AG Roemer’s Opinion in Van Gend en Loos
• 3/6 MSs against (FRG, Dutch, Belgium)

Flesh added to the Skeleton:
the Basic Rules
Van Gend en Loos and Costa v ENEL
• Primacy has a past and future effect
Nat. Norm A EC Norm Nat. Norm B

Adopted Adopted Adopted
1990 1995 2000

Subsequent Case Law
• Case 11/70, Internationale Handelsgesellshaft: applicants had obtained a
licence for an export from Germany, conditional under an EC regulation on
lodging a deposit which acted as a guarantee that the exportation would be
carried out while the licence was valid. As the exportation was not completed
during the validity of the licence, the German administrative authorities ordered
the forfeiture of a large part of the deposit. The applicants challenged the
forfeiture on the basis that it contravened principles of German constitutional
law (proportionality, right to property etc.)
• Frankfurt administrative court, made reference to the ECJ
• Held: (1) Community law prevails over any rule of domestic law (2) the
legal status of a conflicting national measure is irrelevant to Primacy of
EU law.
Subsequent Case Law
• Case 106/77, Simmenthal SpA (Simmenthal 2) Italian law that was introduced
after joining the EEC required veterinary inspections of beef and veal. The law
was challenged before the Italian courts as contrary to EU law (prohibiting
quantitative restrictions on imports and measures having equivalent effect)
• Under Italian law only the Supreme Court could invalidate legislation
• Held:
1. domestic rules/practices preventing effectiveness will be inapplicable
2. precludes the valid adoption of new conflicting national legislative
measure

Subsequent Case Law
• Case C-213/89, R. v. Secretary of State for Transport, ex parte Factortame: following
concern about the tenuous nature of the link between the owners of a number of fishing
vessels and the United Kingdom, the Merchant Shipping Act 1988 was adopted, setting out
stringent rules for the registration of fishing vessels as British. Many vessels owned by
Spanish nationals previously registered as British no longer qualified and thus could not
share in the United Kingdom fishing quota under the common fisheries policy.
• The applicants asked for suspension of the relevant parts of the 1988 Act, arguing that the
Act contravened various provisions of the Treaty and also asked for an injunction against
the State (not allowed)
• Held: A national law should be set aside where it prevents the granting of interim
relief in a dispute governed by EC law
Subsequent Case Law
• Cases C-10-22/97, IN.CO.GE: Italian rules on registration of companies
incompatible with EU law
Held: If the national measure is incompatible with EC law, it does not mean
that it is non-existent; merely it is not to be applied (priority of application
and not necessarily invalidity)
• Case 167/73, Commission v. France: French Admiralty Code required that
1/3 of sailors had to be French nationals; against EU principle of non-
discrimination; in practice not applied
Held: no obstruction to EC law even if it is theoretical
State liability as a matter of
principle
Joined cases C-6/90 and C-9/90, Andrea Francovich v. Italian State
[1991] ECR I-5357
1. 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.
2. When a Member State fail to implement a directive in national
law, an individual who suffers a damage as a consequence may
claim compensation from the State
Francovich
• Cases C-6&9/90 Francovich & Others v Italy
• Failure by Italian authorities to implement Directive 80/987/EEC
• EU member states were expected to enact provisions in their national law to give a minimum
level insurance for employees who had wages unpaid if their employers went insolvent
• Italy already been held to be in breach of its obligation to implement the directive in Case
22/87, Commission v Italy
• Francovich and others unable to make claim for wages because of the failure of the state to set
up the scheme as required by the directive
• National court asked CJEU whether the directive had direct effect
• CJEU held it did not because it was not sufficiently precise
Legal basis for State liability
• The Treaty is silent on State liability
• Francovich: Full effectiveness of EU law and judicial
protection
• State liability is“inherent in the system of the Treaty”
• Art 10 ECT: Obligation to nullify the unlawful
consequences of a breach of Community law
The Francovich conditions for
State liability
• The directive must confer a right on citizens

• Contents of the right must be identifiable from the directive
• Causal link between the State’s breach and the loss
suffered.

Joined Cases C-46, 48/93 Joined Cases C-46, 48/93 Brasserie du Pêcheur
SA v Germany and R v Secretary of State for Transport ex parte
Factortame
• Brasserie du Pêcheur: • ex parte Factortame: Spanish

French company, claiming fishermen claiming damages in
damages from German respect of losses caused by
government in respect of application of Merchant
lost sales caused by Shipping Act 1988 which
German Beer Purity rules breached Article 49 (ex Article
which infringed Article 28 52) (freedom of establishment)
EC Treaty (ex Article 30)-
free movement of goods
The conditions for State liability
Conditions after Brasserie du Pêcheur /Factortame III

1. Rule of law infringed must be intended to confer
rights on individuals
2. Breach must be sufficiently serious
3. Direct causal link
Application & vagueness of
criteria
• Case C-392/93, British Telecom: honest misunderstanding as to the requirements
of the directive on telecommunication providers
• Case C-319/96, Brinkmann: incorrect tax classification by Denmark was a common
mistake
• Cases 283, 291 & 292/94, Denkavit: the German authorities’ incorrect
interpretation of the directive on tobacco was based on discussions in the Council
• Not sufficiently serious breach-degree of discretion of national authorities and
precision of the wording

Application
• Cases C-178, 179, 188, 189 and 190/94, Dillenkofer (tourist

operator bankrupt and recovery fund): failure to implement a
directive is a sufficiently serious breach on itself
• Case C-5/94, Hedley Lomas (Spanish slaughterhouses
methods, export licence refused by UK): directive excluded
any discretion to the UK, even if Spain probably failed to
comply, the breach was sufficiently serious
SPECIAL CASE
• Case C-224/01 Koebler v. Austria: a claim by an Austrian professor
for recognition of time spent working in universities in other EU
Member States for the purpose of a long service bonus. The national
court submitted and then withdrew a request for a preliminary ruling
from the ECJ. It then applied its interpretation of EU law and decided
that the applicant did not qualify for the bonus. The applicant then
sued the Austrian government for damages under state liability. This
time a preliminary reference was made to the ECJ.
HELD
• “In the light of the essential role played by the
• “Manifest and sufficiently judiciary in the protection of the rights derived by
individuals from Community rules, the full
serious breach” required effectiveness of those rules would be called in
question and the protection of those rights would
be weakened if individuals were precluded from
being able, under certain conditions, to obtain
reparation when their rights are affected by an
infringement of Community law attributable to a
decision of a court of a Member State
adjudicating at last instance”.
Paragraph 33

Subsequently
• Dhabi v. Italy, Ap. No. 17120/09, 8 April 2014, ECtHR
• Schipani v Italy, Ap. No. 38369/09, 21 July 2015, ECtHR
• Failure to give any reasons or failure to give specific reasons
regarding not sending a preliminary reference constitutes a
breach of the right to a fair trial protected under article 6 ECHR
• NOTE Strasbourg Court decisions
• Case C-160/14, Ferreira da Silva
Dr. Constantinos Kombos, UCY 91
Case C-160/14, Ferreira da Silva
• The problem concerned the interpretation of the concept of ‘transfer of a business’ within the meaning of the
Directive 2001/23.
• The Portuguese Supreme Court denied the requests for a preliminary reference by the parties, considering that
there were no doubts regarding the interpretation of the relevant provisions of EU law that could justify the
reference for a preliminary ruling
• The parties brought an action for damages against the State because: (i) the Court had erroneously interpreted
the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23 and (ii) had not made a
reference for a preliminary ruling to the ECJ when such a reference was mandatory
• Defence  a claim for damages must be based on the prior setting aside, by the court having jurisdiction
(Supreme Court), of the decision that caused the loss or damage. Therefore, as the decision of the Supreme
Court had not been set aside, the damages sought were not payable
• The Court of First Instance, Lisbon (Varas Civeis de Lisboa) referred the question for a preliminary ruling to the
CJEU

Case C-160/14, Ferreira da Silva
• Held:
• the notion of a “transfer of a business” was considered very controversial and has given rise to a
great deal of uncertainty not just in Portugal, but also in many other Member States
• where the conditions for a State to incur liability are satisfied, it is on the basis of the rules of
national law concerning liability that the State must make reparation for the consequences of the
loss or damage caused, provided that the conditions laid down by national law respect both the
principles of equivalence and effectiveness
• requiring prior invalidation has the consequence that “any action for damages against the State
for infringement of the obligation stemming from the failure to comply with the duty imposed by
the third paragraph of Article 267 TFEU will be inadmissible if the decision that caused the loss
or damage has not been set aside”

PRELIMINARY REFERENCES

Preliminary reference procedure:
legal framework
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;
(…)”
Preliminary reference procedure
 Judicial cooperation / dialogue

 Plays decisive role in the development of EU law and its integration
into national legal systems
 Ensures uniform application and interpretation of EU law in order to
achieve a successful internal market
 Safeguard against diverging interpretations of EU law

The role of Article 267 TFEU
• An organic link between the CJEU and national courts:
• Case 13/61, Bosh v. de Geus [1962] ECR 45
• AG Lagrange: The provisions of Article 177 (now 267) must
lead to a real and fruitful collaboration between the
municipal court and the Court of Justice of the
Communities with mutual regard for their respective
jurisdictions.
The role of Article 267
• An essential tool for ensuring uniformity of interpretation
and equal application
Case 166/73, Rheinmuhlen-Dusseldorf [1974] ECR 33
“is essential for the preservation of the Community character
of the law established by the Treaty and has the object of
ensuring that in all circumstances the law is the same in all
States of the Community.”
Preliminary reference procedure
• Court of Justice does not:

• establish the facts/apply the law to those facts,
• invalidate or interpret provisions of national law,
• set aside judgments of national courts and tribunals (not an appeal)
• Respective tasks: the national court establishes the factsthe Court of
Justice interprets provisions of EU law the national court applies that
interpretation to the facts of the case pending before it
Article 267 as an interpretative
tool
Which provisions of Community law may be referred for
interpretation?
• EC Treaty provisions, acts of the institutions and the ECB

(decisions, regulations, directives).
• But also, non-binding acts (recommendations-opinions)

Whether and when to make a reference?
• discretion to refer cannot be restricted!

• At any stage of proceedings
• The necessity criterion: as soon as it finds that a ruling on the
interpretation or validity of EU law is necessary to enable it to
give judgment (no general or hypothetical questions)
• Desirable that a reference should be made when the referring
court is able to define the legal and factual context of the case
so that the Court of Justice has all the necessary information
Which bodies can refer questions to the CJEU?
• The whole range of bodies that embody the judicial power of the
state may make references
• It is up to the CJEU to determine whether a body qualifies under
Art.267
• National categorization is not conclusive

Which bodies can refer questions
to the CJEU?
• whether the body is established by law
• whether it is permanent
• whether the jurisdiction is compulsory
• whether it is independent
• whether it applies rules of law
• whether the procedure is inter partes

Right vs. Obligation?
Article 267 (2) & (3) 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 question is necessary to enable it to give
judgment, request the Court 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, the court or tribunal shall
bring the matter before the Court. (…)”
When is a preliminary reference
to be made?
• The discretion to Refer: Art.267 (2) • The obligation to
• discretion to refer is held by all national referArt.267 (3)
courts faced with questions of EU law • a duty to refer falls upon a
• a prior ruling by the CJEU on a similar court against whose decisions
question does not nullify the discretion there is no judicial remedy
• an internal hierarchical rule of a available
national legal system does not limit the
discretion to refer of a lower court
Exceptions to the duty to refer
• Where the doctrine of acte clair as

established in CILFIT applies:
• Where the court has “where the correct application of EU
answered a materially law is so obvious as to leave no
identical question: Da scope for any reasonable doubt
Costa Case as to how the question raised is to
be resolved, a reference would be
meaningless”

Effects of a preliminary ruling
 Effects within the case: binding on the referring court or tribunal, on

the parties
 Effects beyond the particular case: binding on other courts and
national administrations (to ensure uniform application of EU law)
 However, national courts are entitled to make a new reference to
the Court of Justice, even on an issue which has already been
subject of a judgment. On limited occasions, the Court has in the
past reconsidered its previous case-law.
Protection of Human Rights
• No initial reference to Human Rights
• Economic character of System
• Existence of ECHR
• Problems Gradually Emerged:
1. Legitimacy
2. Message about the sidelining of Rights
3. Primacy principlenational constitutional provisions on Human rights
had to give way to EU rules
Protection of Human Rights: Early
Case law
• Case 1/58, Stork v. High Authority: “Community law does not contain any general principle,
express or otherwise, guaranteeing the maintenance of vested rights”
• Case 40/64, Sgarlata: “these considerations, which will not be discussed here, cannot be
allowed to override the clearly restrictive wording of Art. 173”
• Cases 36-8, 40/59, Geitling: the internal law of a Member State was not within the jurisdiction
of the Court “Moreover Community law, as it arises under the ECSC Treaty, does not contain
any general principle, express or otherwise, guaranteeing maintenances of vested rights.”

Protection of Human Rights:
National Reactions
• Case 29/69, Stauder v. City of Ulm, referring Stuttgart court: “if the ECJ will not constructively fulfil
its duties, then the courts of the FRG would, in spite of the disruption of such a result, feel
compelled to reserve for themselves the ultimate power of examining the constitutionality of
Community acts according to the fundamental rights of the Constitution”
• Solange I, [1974] 2 CMLR 540: “as long as the EC did not have codified fundamental rights, the
German courts would continue to recognize the fundamental rights of Germany as supreme. They
also maintained that German courts had the right to review all incoming legislation from the EC to
ensure that it did not conflict with the same fundamental rights of German law”.
• The German court's concern was backed up by the fact that, back then, the EC did not have
popularly elected legislators either.
The U-Turn
• Case 29/69, Stauder v. City of Ulm: A Commission regulation provided for the
recipients of welfare benefits to receive free butter. When the scheme was
implemented, the German Government required beneficiaries to produce a coupon
bearing their name and address. Stauder claimed that the German decision
implementing the scheme infringed the general principles of EC law and the right to
human dignity.
• Held: “the provision at issue contains nothing capable of prejudicing the fundamental
human rights enshrined in the general principles of Community law and
protected by the court.”
The U-Turn
• Case 11/70, Internationale Handelsgesellschaft: “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.”

The U-Turn
• Case 4/73, Nold KG v. Commission: Decision prohibiting the wholesaler
to buy coal from the supplier unless they buy a specific quantity.
• Right to property and the freedom to engage in economic activity
• “[S]imilarly, 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.”

The U-Turn
• Case 36/75, Roland Rutili v. Ministre de l’intérieur: Italian
working in France, Decree of expulsion for participating in a trade
union that threatened public order, against freedom of movement
provisions that only allowed interference after justification on
grounds of public policy , public security or public health
• Held: reference to the high value of the ECHR
• Case C-299/95, Friedrich Kremzow v Republik Österreich 
same but outside EU law scope issue
HUMAN RIGHTS PROTECTION
GENERAL
PRINCIPLES
CONSTITUTIONAL
ECHR
TRADITIONS
INTERNATIONA
L TREATIES

Limitations
• Case C-159/90, SPUC v. Grogan
• prosecution of Irish students for the distribution of publications containing information about
abortion clinics in the United Kingdom. The basis of the action was that the life of the
unborn was endangered and the activities run contrary to the Irish Constitution.
• In defense, the students argued that the ban on the distribution of the publications
amounted to an infringement of the right to provide services, namely medical treatment.
• Held: the case as one that had no Community law element because the connection
between the students’ activities and the doctors was artificial at best.
• Compare to OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND - [1992] ECHR 68
(23/09/92)
Limitations
• Case C-112/00, Eugen Schmidberger: An environmental protest group planned
and executed an anti-traffic protest, blocking a major motorway in Austria. The
protest group had received permission from the Austrian authorities to go ahead
with the protest. Diversions had been put in place to assist with traffic flow during
30-hour disruption to motorway traffic.
• Issue: protecting a human right V. impact on Free Movement
• Held: Although a Member State is obliged to remove obstacles to trade between
Member States, doing so in this case would have disproportionately infringed on
the rights of the protestors
Limitations
• Case C-341/05, Laval: Laval was a Riga-based construction firm that won a government contract
to renovate a school in Sweden, where it posted some of its Latvian workers through a Swedish
subsidiary that carried out the work on the building sites. The Swedish builders’ union started
negotiations with Laval’s Swedish subsidiary with a view to extending the collective agreement in
the sector to the posted workers and to negotiate their wages. However, negotiations failed and
the Swedish builders’ union called a blockade, legal under Swedish law, of all sites that Laval was
working on in Sweden. Moreover, there was a sympathy strike by the Swedish Electricians’
Union, thus resulting in Laval’s Swedish subsidiary being declared bankrupt.
• Issue: protecting a human right V. impact on Free Movement

Limitations
• Held:CJEU applies the proportionality test and says that collective
action for the protection of the workers of the host State against
social dumping may constitute an overriding reason of public
interest, which in principle justifies a restriction on one of the
fundamental freedoms. The means of blockading action by a trade
union falls within the objective of protecting workers. But in the
actual case concerned the action could not be justified due to an
incorrect implementation of the posting of workers Directive

EU Charter
• Codification of human rights
• Charter proclamation on 7 December 2000;
• Charter:
• innovative instrument bringing together all fundamental rights (dignity,
freedoms, equality, solidarity, citizens rights, justice) making them visible
and predictable;
• addressed to EU institutions and bodies when exercising their
competencies conferred by Treaties and EU MS when implementing EU
law (Article 51 of the Charter). Does not extend the powers of the EU.
The new post-Lisbon context
• EU Charter legally binding.
• The EU’s accession to the ECHR but see Opinion 2/2013
• A specific portfolio for fundamental rights, justice and citizenship.
• A new boost for the Union’s work in this area

EU CHARTER
• Article 51
• Field of application
• 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.

EU CHARTER
• Article 52
• Scope and interpretation of rights and principles
• 3. In so far as this Charter contains rights which correspond to rights guaranteed by
the Convention for the Protection of Human Rights and Fundamental Freedoms, the
meaning and scope of those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing more extensive
protection.
• 4. In so far as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be
interpreted in harmony with those traditions.
EU CHARTER
• Case C-370/12, Pringle
• Case C-399/11, Melloni: Melloni was convicted in Italy for bankruptcy fraud, where he was
tried in absentia (without his presence) and sentenced to 10 years in prison after exhausting
all appeals
• Many years later, he was apprehended by Spanish authorities, who sought to extradite
Melloni to Italy, where he would be required to serve his sentence
• Melloni argued in front of the Spanish Constitutional Court that his right to a fair trial as
protected under Spanish Constitution article 24 will be violated (no extradition unless appeal
available at point of trial i.e. Italy)
EU CHARTER
• Held:
• standard of protection under article 47 EU Charter for fair trial is
guaranteed
• The fact that the Spanish Constitution provided for more protection
is immaterial if it has the result of not complying with the EAW
system

EU CHARTER
• Case C‑362/14, Maximillian Schrems
• Issue: the regulation (Data Protection Directive/DPD)of personal data flows to a third country,
the USA and its compatibility with the EU Charter . Article 25 DPD allowed transfer of data only
if the recipient ensured adequate protection similar to that applied in the EU
• Both national Data Protection Authorities (DPAs) and the Commission were given the power to
assess the level of protection surrounding a given set of cross-border transfers: the former
when examining specific requests from data holders, the later through “Adequacy Decisions”,
binding on Member States.
• As the US privacy framework did not meet EU standards, the Commission came to an original
solution. The US Adequacy Decision (Safe Harbour) allows US companies to self-certify
adequacy
EU CHARTER
• Snowdens’ revelations made clear that the NSA had obtained unrestricted
access to mass data stored on servers located in the US. All companies
appeared to be Safe Harbour certified
• Max Schrems, an EU privacy activist/student, decided to file a complaint to
the Irish DPA in order to stop the transfer of his data by Facebook Ireland to
Facebook Inc. located in the US.
• Irish DPA refused and an action was brought on the basis of Articles 7 and
8 of the EU Charter of fundamental rights (Respect for private and family
life & Protection of personal data)
EU CHARTER
• Held:
• The Court found that the (unique) solution imagined by the
Commission to compensate for the lack of safeguards established
by US law does not conform to such requirements as the
“Principles” only bind US companies that have self-certify and not
US public authorities
• Violation of the EU Charter and Annulled the Safe Harbour
Decision.
Case C-673/16, Coman (5th June
2018)
• IssueThe meaning of a spouse
• A couple brought an action before the Romanian courts seeking a declaration of
discrimination on the grounds of sexual orientation as regards the exercise of the
right of freedom of movement within the EU after the country’s authorities refused
Mr Hamilton, an American and the spouse of Mr Coman, a Romanian, the right to
stay in Romania for more than three months
• The Curtea Constituţională (Constitutional court, Romania) asked the Court of
Justice whether Mr Hamilton may be regarded as the ‘spouse’ of an EU citizen
who has exercised his right to freedom of movement, and must therefore be
granted a permanent right of residence in Romania.
Coman
Held:
• the refusal by Romania to recognise, for the sole purpose of granting a derived right of residence to a
national of a non-EU state, the marriage of that national to an EU citizen of the same sex lawfully
concluded in another member state may interfere with the exercise of that citizen’s right to move and
reside freely within the EU
• freedom of movement from one member state to another would vary depending on whether or not
provisions of national law allow marriage between persons of the same sex (uniformity)
• public policy, as justification for restricting the right to freedom of movement, 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 (central EU regulation)
• the obligation for a member state to recognise a homosexual marriage concluded in another member
state in accordance with the law of that state, for the sole purpose of granting a derived right of residence
to a national of a non-EU state, does not undermine the institution of marriage in the first member state.

Coman
Held:
• that obligation does not require that member state to provide, in its national law, for the institution of
homosexual marriage.
• an obligation to recognise such marriages, for the sole purpose of granting a derived right of
residence to a national of a non-EU state, does not undermine the national identity or pose a threat to
the public policy of the member state concerned.
• Lastly, the court observes 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 of Fundamental Rights of the European Union.
• The fundamental right to respect for family and private life being guaranteed by Article 7 of the
Charter, the court notes that it is also 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 a relationship of a heterosexual couple in the same situation.
Free Movement of Goods
• Free movement of:
• Goods
• Services and Freedom of Establishment
• Persons
• Capital
• Case study: free movement of goods
Types of Protection
• 1. ‘Positive’ integration
• EU legislator adopts legislation (often on the basis of Art. 114 TFEU)
• that provides (typically) for a minimum of harmonization to alleviate or
remove barriers to trade between Member States
• the EU may intervene to cure diversity between national laws only
where that diversity is shown to be harmful to the achievement of
the EU’s internal market
Types of Protection
• 2. Negative integration: case-by-case removal or “disapplication of
trade barriers”
• Here the courts are the primary actors, presiding over litigation
• Individual plaintiffs or the European Commission can initiate legal
actions against the MSs
• The courts then invalidate (where they have that power) or “disapply”
national rules that are contrary to the rules on free movement
Free trade as envisaged by the Treaty
• The Treaty sets out the following tasks for the Union: To prohibit between MS:
1. Customs duties (i.e., duties on imports or exports) &Charges having an
equivalent effect (i.e., equivalent to customs duties); (arts. 28-30 TFEU)
2. Prohibition of discriminatory taxation (arts. 110-113 TFEU)
3. Quantitative restrictions (i.e., quotas or bans on imports or exports); and
Measures having an equivalent effect to quantitative restrictions) (arts. 34-
37 TFEU)
• Some exceptions apply

GOODS?
• Case 7/68, Commission v Italy “products which can be
valued in money, and which are capable…of forming the
subject of commercial transactions”
• E.g. Case C-393/92,Gemeente Almelo: electricity; Case
2/90, Commission v Belgium: waste

Custom duty
• What is a customs duty?
• Case 78/76, Steinike & Weinlig: A pecuniary charge imposed on
goods because they are imported/exported
• Charge of DM 20000 levied on processed citrus concentrates
imported from Italy and various third countries.
• Example: 2% on French wine imposed at the border

CHARGES HAVING EQUIVALENT
EFFECT
• Case 24/68, Commission v Italy (Statistical Levy); Cases 2&3/69,
Sociaal Fonds voor de Diamanterbeiders:
• “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 [to a customs duty]”
• Regardless of amount, purpose & advantage for national product
Permissible charges/exceptions
• Case 18/87, Commission v Germany:
• such a charge escapes that classification if:
1. if it constitutes payment for a service in fact rendered to the
economic operator
2. if it attaches to inspections carried out to fulfil obligations
imposed by EU law

CHARGES FOR SERVICES RENDERED
• The services must be of direct benefit to traders or to the goods & amount charged must
be commensurate with the service idea of quid pro quo
• Case 63/74, Cadsky: fruit exporter from Italy to Germany, mandatory quality control by
Italian authorities prior to export in order to ensure quality, reputation and
competitivenessnot specific, measurable, identifiable
• Case 24/68, Commission v Italy (Statistical Levy): claim that the fee is for collecting
useful statistical data (quid pro quo)not specific, measurable, identifiable
• Case 39/82, Donner: book order by post, VAT applied, payable at customs or upon
collection at post office, chose the latter that incurred a feea specific, measurable
advantage/convenience to the buyer

Charges for inspections
• A charge may be imposed for • State can not recover the costs
inspections which are of inspections that the State
mandatory under EU law imposes irregardless of
providing the charges do not whether the inspection is in the
exceed the actual costs of the wider public interest
inspection
• Case 46/76, Bauhuis

CHARGES HAVING EQUIVALENT
EFFECT
• Member State is required to repay the trader
where the duty/charge is contrary to Articles 28-30
TFEU
• Case 199/82, San Giorgio

Article 110 TFEU Internal
Taxation
• Supplements Articles 28-30 by aiming to prevent the objectives of
those articles being undermined by discriminatory internal taxation
• MSs are free to establish their own system of internal taxation (for
example such as VAT) provided there is no discrimination against
imports or indirect protection of domestic goods
• see Case 243/84, John Walker
• A tax or a customs duty?
• Depends on the point of imposition i.e. boarder or after entryboth can not
apply
Art 110 (1)
• 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.
• direct or indirect discrimination i.e. obvious or hidden different taxation treatment
• discrimination between imports and similar domestic products
• Similar:Need not be identical
• Case 106/84, Commission v Denmark first consider the objective characteristics of the the
products (e.g.. Ingredients, raw materials, method of manufacture); and secondly whether
they “meet the same needs from the point of view of the consumer… not according to
whether they are strictly identical but whether their use is similar or comparable”

Similar?
• Case 243/83, John Walker (Danish tax higher for whiskey than on fruit
liqueur wines-not similar)CJEU held that the two drinks were not similar- it
was not enough that they were both alcholholic products. ECJ said the
drinks were ‘manifestly different products’ -they were made by different
processes, the alchohol content was very different.
• Case 106/84, Commission v Denmark: (higher tax on wine made from

fruits than for wine made fro grapes)similaranalogous production
methods, alcohol percentage, meet same needs of consumers
ARTICLE 110(2)
• “No Member State shall impose on the products of other Member States any
internal taxation of such nature as to afford indirect protection to other
products”
• not necessary for the goods to be similar
• Prohibits internal taxation giving indirect protection to other products that are
in competition
• Case 193/85, Cooperativa co-Frutta: company imported to Italy bananas, ripening them
and selling them, taxed them as fresh, applied equally to domestic and foreign, but no
real national production “all forms of indirect protection in the case of products which,
without being similar within the meaning of Article 90 (1), are nevertheless in competition,
even partial, indirect or potential competition with each other”
Article 110 (2)
• Case 170/78, Commission v UK Is beer similar to wine? Are they
in competition?
• Will consumers substitute one for the other?
• In measuring possible degree of substitution should consider future
consumer preferences.
• In Competition, could push consumers to chose beer instead of
wine because it is a substitute and in the same price range

Quantitative restrictions (articles
34-37 TFEU)
• Quantitative restrictions on imports and all measures having
equivalent effect shall be prohibited between Member States (art.
34)
• Note-Article 35 provides exactly the same for exports
• A national measure which contravenes Arts. 34-35 is prima facie in breach of the
Treaty-however there are exceptions
• Article 36 provides exceptions/derogation's
• The ECJ has also developed a line of case law restricting the scope of Article 34
(known as the ‘rule of reason’ and also in relation to certain‘selling arrangements)
ARTICLE 34
• Quantitative restrictions on imports and all measures having
equivalent effect shall be prohibited between Member States
• Case 2/73, Geddo
• “measures which amount to a total or partial restraint of
imports, exports or goods in transit”
• Examples: quotas of all types

Article 34-MEQR’s
• Quantitative restrictions on imports and all measures
having equivalent effect shall be prohibited between
Member States: Case8/74, Dassonville
• “all trading rules which are capable of hindering,
directly or indirectly, actually or potentially, intra-
Community trade”

Dassonville
• Case 8/74, Dassonville Belgian legislation requiring certificate of
origin in respect of certain goods (including whiskey)-D bought
whiskey from France where the goods were in free circulation
• attempted to sell the whiskey in Belgium with forged certificate
• Held the requirement to have a certificate of origin was a MEQR

MEQR’s Examples
• Import Licenses
• Commission v UK (UHT Milk) Case 124/81

• Sandoz BV Case 174/82
• Hygiene/Health Inspections
• Rewe-Zentralfinanz eGmbH v Landwirtschaftskammer Case 4/75

MEQR’s Examples
• Origin Marking-
• Dassonville Case 8/74
• Commission v Ireland (Irish souvenirs) Case 113/80
• Buy National Campaigns
• Commission v Ireland (Buy Irish campaign) Case 249/81
• Apple and Pear Development Council v Lewis Case 222/82
• Packaging Requirements
• rules are usually indistinctly applicable
• increase cost for manufacturers that have to comply with differing packaging requirements
• Walter Rau v De Smedt Case 261/81
MEQR’s Examples
• Packaging Requirements
• Mars Case C-470/93
• Contents and Ingredients restrictions
• Commission v Germany (Beer Purity case) Case 178/84
• Cassis de Dijon Case 120/78
Name restrictions
• Commission v Italy Case C-14/00 (Chocolate)
Exceptions
• MSs can mantain QRs & MEQRs where this is
justified by the public interest
• Art. 36 TFEU: restrictions justified on grounds of:
• Public morality / Public policy / Public security
• Protection of industrial and commercial property
• Protection of health and life of humans, etc.
Clarification
• Please note that there are significant case-law

exceptions (mandatory requirements, seeling
arrangements etc) but for economy of time and for
the benefit of simplicity those are omitted

Conclusion
• EU law is about markets and production forces
• FM of goods, services, capital, workers
• Competition
• Constitutional principlesaiming at effectiveness of enforcement,
uniform application
• HRs and competences constitutional qualities
• A complex system, became political but remains at core economic

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BASIC PRINCIPLES

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 4

AA Reinforces the arrangements for free trade in

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 8

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 9

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 11

• Agreement on Conformity Assessment and Acceptance of industrial

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 12

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 14

• Main issue: whether Israel can

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 18

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 21

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 22

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 24

District - 1(1) 5(6) 12(31) 18(38)

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 26

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 27

Michelin v Competition law 6

Case C- 363/ Trademarks 6

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 32

• TaskHow to ensure that this would never happened again?

Konrad Adenauer Alcide De Gasperi

Robert Schuman Jean Monnet

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 40

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 41

• The 6 signatories of the Treaty declare that they

France, Germany, Italy, Luxembourg, Netherlands,

01/01/1973 Denmark, Ireland, UK (BREXIT)

01/01/1986 Portugal, Spain

01/01/1995 Austria, Finland, Sweden

Cyprus, Czech Republic, Estonia, Hungary, Latvia,

01/01/2007 Bulgaria, Romania

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 43

1958 The treaties of Rome:

1987 The European Single Act: the Single Market

1993 Treaty on European Union - Maastricht

1999 Treaty of Amsterdam

2003 Treaty of Nice

2009 Treaty of Lisbon

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 44

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 45

• The treaty on the European Union (TEU)

• The various other Treaties mentioned before are amendments to

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 47

European Council (summit)

Court of Court of Economic and Social

European Investment Bank Agencies European Central Bank

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 48

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 49

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 53

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 56

Commission: makes formal proposal

Parliament and Council of Ministers: decide jointly

National or local authorities: implement

Commission and Court of Justice: monitor implementation

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 59

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 60

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 61

Dr. Constantinos Kombos, Associate Professor of Public and EU Law 62