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DUBROVNIK INTERNATIONAL

UNIVERSITY
_________________________________________

Cases and Materials


(International Law Part II: Introduction to EU Law)

Dubrovnik, October/November 2012


1st Day - October 22, 2012: Overview of European Integration I

Robert Schuman: Declaration of 9 May 1950

World peace cannot be safeguarded without the making of creative efforts


proportionate to the dangers which threaten it.
The contribution which an organised and living Europe can bring to civilisation is
indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20
years the role of champion of a united Europe, France has always had as her essential aim the
service of peace. A united Europe was not achieved and we had war.
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 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 concern 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 the other countries of Europe.
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 constant victims.
The solidarity in production thus established will make it plain that anywar between
France and Germany becomes not merely unthinkable, but materially impossible. The setting
up of this powerful productive unit, open to all countries willing to take part and bound ultimately
to provide all the member countries with the basic elements of industrial production on the
same terms, will lay a true foundation for their economic unification.

European Coal And Steel Community Treaty (1951): Preamble

CONSIDERING that world peace may be safeguarded only by creative efforts equal to
the dangers which menace it;
CONVINCED that the contribution which an organized and vital Europe can bring to
civilization is indispensable to the maintenance of peaceful relations;
CONSCIOUS of the fact that Europe can be built only by concrete actions which create
a real solidarity and by the establishment of common bases for economic development;
DESIROUS of assisting through the expansion of their basic production in raising the
standard of living and in furthering the works of peace;
RESOLVED to substitute for historic rivalries a fusion of their essential interests; to
establish, by creating an economic community, the foundation of a broad and independent
community among peoples long divided by bloody conflicts; and to lay the bases of institutions
capable of giving direction to their future common destiny;
HAVE DECIDED to create a European Coal and Steel Community and to this end have
designated as plenipotentiaries (...)

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Treaty Establishing the European Ecomonic Community (1957): Preamble

DETERMINED to establish the foundations of an ever closer union among the European
peoples,
DECIDED to ensure the economic and social progress of their countries by common
action in eliminating the barriers which divide Europe,
DIRECTING their efforts to the essential purpose of constantly improving the living and
working conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order
to guarantee a steady expansion, a balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious
development by reducing the differences existing between the various regions and by mitigating
the backwardness of the less favoured,
DESIROUS of contributing by means of a common commercial policy to the progressive
abolition of restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and overseas countries, and
desiring to ensure the development of their prosperity, in accordance with the principles of the
Charter of the United Nations,
RESOLVED to strengthen the safeguards of peace and liberty by establishing this
combination of resources, and calling upon the other peoples of Europe who share their ideal to
join in their efforts,
HAVE DECIDED to create a European Economic Community and to this end have
designated as their plenipotentiaries (...)

Treaty Establishing the European Ecomonic Community (1957): Article 2

Article 2
It shall be the aim of the Community, by establishing a Common Market and progressively
approximating the economic policies of Member States, to promote throughout the Community a
harmonious development of economic activities, a continuous and balanced expansion, an
increased stability, an accelerated raising of the standard of living and closer relations between
its Member States.

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Treaty Establishing the European Ecomonic Community (1957): Article 3

Article 3
For the purposes set out in the preceding Article, the activities of the Community shall include,
under the conditions and with the timing provided for in this Treaty:
(a) the elimination, as between Member States, of customs duties and of quantitative
restrictions in regard to the importation and exportation of goods, as well as of all other
measures with equivalent effect;
(b) the establishment of a common customs tariff and a common commercial policy
towards third countries;
(c) the abolition, as between Member States, of the obstacles to the free movement of
persons, services and capital;
(d) the inauguration of a common agricultural policy;
(e) the inauguration of a common transport policy;
(f) the establishment of a system ensuring that competition shall not be distorted in the
Common Market;
(g) the application of procedures which shall make it possible to co-ordinate the
economic policies of Member States and to remedy disequilibria in their balances of payments;
(h) the approximation of their respective municipal law to the extent necessary for the
functioning of the Common Market;
(i) the creation of a European Social Fund in order to improve the possibilities of
employment for workers and to contribute to the raising of their standard of living;
(j) the establishment of a European Investment Bank intended to facilitate the economic
expansion of the Community through the creation of new resources; and
(k) the association of overseas countries and territories with the Community with a view
to increasing trade and to pursuing jointly their effort towards economic and social development.

Treaty on European Union (as amended by Treaty of Lisbon): Article 2, Article 49


Article 2
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 women and men prevail.

Article 49
Any European State which respects the values referred to in Article 2 and is committed to
promoting them may apply to become a member of the Union. The European Parliament and
national Parliaments shall be notified of this application. The applicant State shall address its
application to the Council, which shall act unanimously after consulting the Commission and
after receiving the consent of the European Parliament, which shall act by a majority of its
component members. The conditions of eligibility agreed upon by the European Council shall
be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member
States and the applicant State. This agreement shall be submitted for ratification by all the
contracting States in accordance with their respective constitutional requirements.
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Treaty on European Union (as amended by Treaty of Lisbon): Article 50

Article 50
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.

European Court of Human Rights: Bosphorus v Ireland, Grand Chamber, 2005 (extract)

Facts:

Bosphorus was a Turkish airline company that leased an aircraft from Yugoslav Airlines (JAT). In 1993, while
the aircraft was in Dublin for maintenance, the Irish government seized the aircraft in application of EC Council
Regulation 990/93. This Regulation implemented UN Security Council sanctions against the Federal Republic of
Yugoslavia (Serbia & Montenegro). The Irish courts, applying a preliminary ruling of the European Court of
Justice, considered that the EC Regulation had been correctly applied. Bosphorus was consequently unable to
use the aircraft for the three years of its four year lease contract. It complained that its right to property, protected
by Article 1 Protocole 1 of the European Convention of Human Rights, had been violated by the Irish State.
Note: the EU is not a party to the European Convention of Human Rights, and it is currently uncertain when
accession might take place.

B. Article 1 of Protocol No. 1

139. Article 1 of Protocol No. 1 reads as follows:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the conditions provided for by law and by the
general principles of international law. The preceding provisions shall not, however, in any way impair the right of
a State to enforce such laws as it deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.

140. It was not disputed that there was an interference (the detention of the aircraft) with the applicant
company's possessions (the benefit of its lease of the aircraft) and the Court does not see any reason to
conclude otherwise (see, for example, Stretch v. the United Kingdom, no. 44277/98, 32-35, 24 June 2003).

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1. The applicable rule

141. The parties did not, however, agree on whether that interference amounted to a deprivation of property (first
paragraph of Article 1 of Protocol No. 1) or a control of the use of property (second paragraph). The Court
reiterates that, in guaranteeing the right of property, this Article comprises three distinct rules: the first rule, set
out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful
enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, amongst other things, to control the use of property in
accordance with the general interest. The three rules are not distinct in the sense of being unconnected: the
second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment
of property and should therefore be construed in the light of the general principle enunciated in the first rule (see
AGOSI, cited above, p. 17, 48).

142. The Court considers that the sanctions regime amounted to a control of the use of property considered to
benefit the former FRY and that the impugned detention of the aircraft was a measure to enforce that regime.
While the applicant company lost the benefit of approximately three years of a four-year lease, that loss formed a
constituent element of the above-mentioned control on the use of property. It is therefore the second paragraph of
Article 1 of Protocol No. 1 which is applicable in the present case (see AGOSI, cited above, pp. 17-18, 50-51,
and Gasus Dosier- und Frdertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no.
306-B, pp. 47-48, 59), the general principles of international law within the particular meaning of the first
paragraph of Article 1 of Protocol No. 1 (and relied on by the applicant company) not therefore requiring separate
examination (see Gasus Dosier- und Frdertechnik GmbH, pp. 51-53, 66-74).

2. The legal basis for the impugned interference

143. The parties strongly disagreed as to whether the impoundment was at all times based on legal obligations
on the Irish State flowing from Article 8 of Regulation (EEC) no. 990/93. For the purposes of its examination of
this question, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and
apply domestic law even when that law refers to international law or agreements. Equally, the Community's
judicial organs are better placed to interpret and apply Community law. In each instance, the Court's role is
confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see,
mutatis mutandis, Waite and Kennedy, cited above, 54, and Streletz, Kessler and Krenz v. Germany [GC], nos.
34044/96, 35532/97 and 44801/98, 49, ECHR 2001-II).

144. While the applicant company alluded briefly to the Irish State's role in the Council of the European
Communities (see paragraph 115 above), the Court notes that its essential standpoint was that it was not
challenging the provisions of the regulation itself but rather their implementation.

145. Once adopted, Regulation (EEC) no. 990/93 was generally applicable and binding in its entirety
(pursuant to Article 189, now Article 249, of the EC Treaty), so that it applied to all member States, none of which
could lawfully depart from any of its provisions. In addition, its direct applicability was not, and in the Court's
view could not be, disputed. The regulation became part of domestic law with effect from 28 April 1993 when it
was published in the Official Journal, prior to the date of the impoundment and without the need for implementing
legislation (see, in general, paragraphs 65 and 83 above). The later adoption of Statutory Instrument no. 144 of
1993 did not, as suggested by the applicant company, have any bearing on the lawfulness of the impoundment; it
simply regulated certain administrative matters (the identity of the competent authority and the sanction to be
imposed for a breach of the regulation) as foreseen by Articles 9 and 10 of the EEC regulation. While the
applicant company queried which body was competent for the purposes of the regulation (see paragraph 120
above), the Court considers it entirely foreseeable that the Minister for Transport would implement the
impoundment powers contained in Article 8 of Regulation (EEC) no. 990/93. It is true that Regulation (EEC) no.
990/93 originated in a UNSC resolution adopted under Chapter VII of the United Nations Charter (a point
developed in some detail by the Government and certain third parties). While the resolution was pertinent to the
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interpretation of the regulation (see the opinion of the Advocate General and the ruling of the ECJ paragraphs
45-50 and 52-55 above), the resolution did not form part of Irish domestic law (Mr Justice Murphy paragraph 35
above) and could not therefore have constituted a legal basis for the impoundment of the aircraft by the Minister
for Transport. Accordingly, the Irish authorities rightly considered themselves obliged to impound any departing
aircraft to which they considered Article 8 of Regulation (EEC) no. 990/93 applied. Their decision that it did so
apply was later confirmed, in particular, by the ECJ (see paragraphs 54-55 above).

146. The Court finds persuasive the European Commission's submission that the State's duty of loyal cooperation
(Article 5, now Article 10, of the EC Treaty) required it to appeal the High Court judgment of June 1994 to the
Supreme Court in order to clarify the interpretation of Regulation (EEC) no. 990/93. This was the first time that
regulation had been applied, and the High Court's interpretation differed from that of the Sanctions Committee, a
body appointed by the United Nations to interpret the UNSC resolution implemented by the regulation in question.

147. The Court would also agree with the Government and the European Commission that the Supreme Court
had no real discretion to exercise, either before or after its preliminary reference to the ECJ, for the reasons set
out below. In the first place, there being no domestic judicial remedy against its decisions, the Supreme Court had
to make the preliminary reference it did having regard to the terms of Article 177 (now Article 234) of the EC
Treaty and the judgment of the ECJ in CILFIT (see paragraph 98 above): the answer to the interpretative
question put to the ECJ was not obvious (the conclusions of the Sanctions Committee and the Minister for
Transport conflicted with those of the High Court); the question was of central importance to the case (see the
High Court's description of the essential question in the case and its consequential judgment from which the
Minister appealed to the Supreme Court paragraphs 35-36 above); and there was no previous ruling by the ECJ
on the point. This finding is not affected by the observation in the Court's decision in Moosbrugger (cited and
relied on by the applicant company see paragraph 116 above) that an individual does not per se have a right to
a referral. Secondly, the ECJ ruling was binding on the Supreme Court (see paragraph 99 above). Thirdly, the
ruling of the ECJ effectively determined the domestic proceedings in the present case. Given the Supreme
Court's question and the answer of the ECJ, the only conclusion open to the former was that Regulation (EEC)
no. 990/93 applied to the applicant company's aircraft. It is moreover erroneous to suggest, as the applicant
company did, that the Supreme Court could have made certain orders additional to the ECJ ruling (including a
second clarifying reference to the ECJ) as regards impoundment expenses, compensation and the
intervening relaxation of the sanctions regime. The applicant company's motion and affidavit of October 1996 filed
with the Supreme Court did not develop these matters in any detail or request that court to make such
supplemental orders. In any event, the applicant company was not required to discharge the impoundment
expenses. The fact that Regulation (EEC) no. 990/93 did not admit of an award of compensation was implicit in
the findings of the Advocate General and the ECJ (each considered the application of the regulation to be justified
despite the hardship it implied) and in the expenses provisions of the second sentence of Article 8 of the
regulation. Consequently, the notions of uniform application and supremacy of Community law (see paragraphs
92 and 96 above) prevented the Supreme Court from making such an award. As noted in paragraph 105 above,
Regulation (EC) no. 2472/94 relaxing the sanctions regime as implemented in the European Community from
October 1994 expressly excluded from its ambit aircraft already lawfully impounded, and neither the ECJ nor the
Supreme Court referred to this point in their respective ruling (of July 1996) and judgment (of November 1996).

148. For these reasons, the Court finds that the impugned interference was not the result of an exercise of
discretion by the Irish authorities, either under Community or Irish law, but rather amounted to compliance by the
Irish State with its legal obligations flowing from Community law and, in particular, Article 8 of Regulation (EEC)
no. 990/93.

3. Whether the impoundment was justified

(a) The general approach to be adopted

149. Since the second paragraph of Article 1 of Protocol No. 1 is to be construed in the light of the general
principle enunciated in the opening sentence of that Article, there must exist a reasonable relationship of
proportionality between the means employed and the aim sought to be realised: the Court must determine
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whether a fair balance has been struck between the demands of the general interest in this respect and the
interest of the individual company concerned. In so determining, the Court recognises that the State enjoys a
wide margin of appreciation with regard to the means to be employed and to the question of whether the
consequences are justified in the general interest for the purpose of achieving the objective pursued (see AGOSI,
cited above, p. 18, 52).

150. The Court considers it evident from its finding in paragraphs 145 to 148 above that the general interest
pursued by the impugned measure was compliance with legal obligations flowing from the Irish State's
membership of the European Community. It is, moreover, a legitimate interest of considerable weight. The
Convention has to be interpreted in the light of any relevant rules and principles of international law applicable in
relations between the Contracting Parties (Article 31 3 (c) of the Vienna Convention on the Law of Treaties, and
Al-Adsani v. the United Kingdom [GC], no. 35763/97, 55, ECHR 2001-XI), which principles include that of pacta
sunt servanda. The Court has also long recognised the growing importance of international cooperation and of
the consequent need to secure the proper functioning of international organisations (see Waite and Kennedy,
63 and 72, and Al-Adsani, 54, both cited above; see also Article 234 (now Article 307) of the EC Treaty). Such
considerations are critical for a supranational organisation such as the European Community25. This Court has
accordingly accepted that compliance with Community law by a Contracting Party constitutes a legitimate
general-interest objective within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, S.A.
Dangeville, cited above, 47 and 55).

151. The question is therefore whether, and if so to what extent, that important general interest of compliance
with Community obligations can justify the impugned interference by the Irish State with the applicant company's
property rights.

152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to
an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity
(see M. & Co., p. 144, and Matthews, 32, both cited above). Moreover, even as the holder of such transferred
sovereign power, that organisation is not itself held responsible under the Convention for proceedings before, or
decisions of, its organs as long as it is not a Contracting Party (see Confdration franaise dmocratique du
travail v. European Communities, no. 8030/77, Commission decision of 10 July 1978, DR 13, p. 231; Dufay v.
European Communities, no. 13539/88, Commission decision of 19 January 1989, unreported; and M. & Co., p.
144, and Matthews, 32, both cited above).

153. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the
Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a
consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no
distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party's
jurisdiction from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey,
judgment of 30 January 1998, Reports 1998-I, pp. 17-18, 29).

154. In reconciling both these positions and thereby establishing the extent to which a State's action can be
justified by its compliance with obligations flowing from its membership of an international organisation to which it
has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely
from their Convention responsibility in the areas covered by such a transfer would be incompatible with the
purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will,
thereby depriving it of its peremptory character and undermining the practical and effective nature of its
safeguards (see M. & Co., p. 145, and Waite and Kennedy, 67, both cited above). The State is considered to
retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention
(see mutatis mutandis, Matthews, cited above, 29 and 32-34, and Prince Hans-Adam II of Liechtenstein v.
Germany [GC], no. 42527/98, 47, ECHR 2001-VIII).

155. In the Court's view, State action taken in compliance with such legal obligations is justified as long as the
relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees
offered and the mechanisms controlling their observance, in a manner which can be considered at least
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equivalent to that for which the Convention provides (see M. & Co., cited above, p. 145, an approach with which
the parties and the European Commission agreed). By equivalent the Court means comparable; any
requirement that the organisation's protection be identical could run counter to the interest of international
cooperation pursued (see paragraph 150 above). However, any such finding of equivalence could not be final and
would be susceptible to review in the light of any relevant change in fundamental rights protection.

156. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a
State has not departed from the requirements of the Convention when it does no more than implement legal
obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in
the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly
deficient. In such cases, the interest of international cooperation would be outweighed by the Convention's role as
a constitutional instrument of European public order in the field of human rights (see Loizidou v. Turkey
(preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, 75).

157. It remains the case that a State would be fully responsible under the Convention for all acts falling outside its
strict international legal obligations. The numerous Convention cases cited by the applicant company in
paragraph 117 above confirm this. Each case (in particular, Cantoni, p. 1626, 26) concerned a review by this
Court of the exercise of State discretion for which Community law provided. Pellegrini is distinguishable: the State
responsibility issue raised by the enforcement of a judgment not of a Contracting Party to the Convention (see
Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, pp. 34-35, 110) is not
comparable to compliance with a legal obligation emanating from an international organisation to which
Contracting Parties have transferred part of their sovereignty. Matthews can also be distinguished: the acts for
which the United Kingdom was found responsible were international instruments which were freely entered
into by it (see paragraph 33 of that judgment). Kondova (see paragraph 76 above), also relied on by the
applicant company, is consistent with a State's Convention responsibility for acts not required by international
legal obligations.

158. Since the impugned measure constituted solely compliance by Ireland with its legal obligations flowing from
membership of the European Community (see paragraph 148 above), the Court will now examine whether a
presumption arises that Ireland complied with the requirements of the Convention in fulfilling such obligations and
whether any such presumption has been rebutted in the circumstances of the present case.

(b) Whether there was a presumption of Convention compliance at the relevant time

159. The Court has described above (see paragraphs 73-81) the fundamental rights guarantees of the European
Community which apply to member States, Community institutions and natural and legal persons (individuals).

While the founding treaties of the European Communities did not initially contain express provisions for the
protection of fundamental rights, the ECJ subsequently recognised that such rights were enshrined in the general
principles of Community law protected by it, and that the Convention had a special significance as a source of
such rights. Respect for fundamental rights has become a condition of the legality of Community acts (see
paragraphs 73-75 above, together with the opinion of the Advocate General in the present case, paragraphs 45-
50 above) and in carrying out this assessment the ECJ refers extensively to Convention provisions and to this
Court's jurisprudence. At the relevant time, these jurisprudential developments had been reflected in certain treaty
amendments (notably those aspects of the Single European Act of 1986 and of the Treaty on European Union
referred to in paragraphs 77-78 above). This evolution has continued. The Treaty of Amsterdam of 1997 is
referred to in paragraph 79 above. Although not fully binding, the provisions of the Charter of Fundamental Rights
of the European Union were substantially inspired by those of the Convention, and the Charter recognises the
Convention as establishing the minimum human rights standards. Article I-9 of the later Treaty establishing a
Constitution for Europe (not in force) provides for the Charter to become primary law of the European Union and
for the Union to accede to the Convention (see paragraphs 80-81 above).

160. However, the effectiveness of such substantive guarantees of fundamental rights depends on the
mechanisms of control in place to ensure their observance.
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161. The Court has referred (see paragraphs 86-90 above) to the jurisdiction of the ECJ in, inter alia, annulment
actions (Article 173, now Article 230, of the EC Treaty), in actions against Community institutions for failure to
perform Treaty obligations (Article 175, now Article 232), to hear related pleas of illegality under Article 184 (now
Article 241) and in cases against member States for failure to fulfil Treaty obligations (Articles 169, 170 and 171,
now Articles 226, 227 and 228).

162. It is true that access of individuals to the ECJ under these provisions is limited: they have no locus standi
under Articles 169 and 170; their right to initiate actions under Articles 173 and 175 is restricted as is,
consequently, their right under Article 184; and they have no right to bring an action against another individual.

163. It nevertheless remains the case that actions initiated before the ECJ by the Community institutions or a
member State constitute important control of compliance with Community norms to the indirect benefit of
individuals. Individuals can also bring an action for damages before the ECJ in respect of the non-contractual
liability of the institutions (see paragraph 88 above).

164. Moreover, it is essentially through the national courts that the Community system provides a remedy to
individuals against a member State or another individual for a breach of Community law (see paragraphs 85 and
91 above). Certain EC Treaty provisions envisaged a complementary role for the national courts in the
Community control mechanisms from the outset, notably Article 189 (the notion of direct applicability, now Article
249) and Article 177 (the preliminary reference procedure, now Article 234). It was the development by the ECJ of
important notions such as the supremacy of Community law, direct effect, indirect effect and State liability (see
paragraphs 92-95 above) which greatly enlarged the role of the domestic courts in the enforcement of Community
law and its fundamental rights guarantees. The ECJ maintains its control on the application by national courts of
Community law, including its fundamental rights guarantees, through the procedure for which Article 177 of the
EC Treaty provides in the manner described in paragraphs 96 to 99 above. While the ECJ's role is limited to
replying to the interpretative or validity question referred by the domestic court, the reply will often be
determinative of the domestic proceedings (as, indeed, it was in the present case see paragraph 147 above)
and detailed guidelines on the timing and content of a preliminary reference have been laid down by the EC
Treaty provision and developed by the ECJ in its case-law. The parties to the domestic proceedings have the
right to put their case to the ECJ during the Article 177 process. It is further noted that national courts operate in
legal systems into which the Convention has been incorporated, albeit to differing degrees.

165. In such circumstances, the Court finds that the protection of fundamental rights by Community law can be
considered to be, and to have been at the relevant time, equivalent (within the meaning of paragraph 155
above) to that of the Convention system. Consequently, the presumption arises that Ireland did not depart from
the requirements of the Convention when it implemented legal obligations flowing from its membership of the
European Community (see paragraph 156 above).

(c) Whether the presumption in question has been rebutted in the present case

166. The Court has had regard to the nature of the interference, to the general interest pursued by the
impoundment and by the sanctions regime and to the ruling of the ECJ (in the light of the opinion of the Advocate
General), a ruling with which the Supreme Court was obliged to and did comply. It considers it clear that there
was no dysfunction of the mechanisms of control of the observance of Convention rights. In the Court's view,
therefore, it cannot be said that the protection of the applicant company's Convention rights was manifestly
deficient, with the consequence that the relevant presumption of Convention compliance by the respondent State
has not been rebutted. 4. Conclusion under Article 1 of Protocol No. 1

167. It follows that the impoundment of the aircraft did not give rise to a violation of Article 1 of Protocol No. 1.

FOR THESE REASONS, THE COURT UNANIMOUSLY


1. Dismisses the preliminary objections;
2. Holds that there has been no violation of Article 1 of Protocol No. 1.
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2nd Day October 23, 2012: Overview of European Integration II
Treaty Establishing European Economic Community (1957): Article 119

Article 119
1. Each Member State shall ensure that the principle of equal pay for male and female workers
for equal work or work of equal value is applied.
2. For the purpose of this Article, pay means the ordinary basic or minimum wage or salary and
any other consideration, whether in cash or in kind, which the worker receives directly or
indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of
measurement;
(b) that pay for work at time rates shall be the same for the same job (...)

Treaty on Europen Union (1993): Article 1, Article 2


Article 1
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a
EUROPEAN UNION, hereinafter called the Union.
This Treaty marks a new stage in the process of creating an ever closer union among
the peoples of Europe, in which decisions are taken as openly as possible and as closely as
possible to the citizen.
The Union shall be founded on the European Communities, supplemented by the
policies and forms of cooperation established by this Treaty. Its task shall be to organise, in a
manner demonstrating consistency and solidarity, relations between the Member States and
between their peoples.
Article 2
The Union shall set itself the following objectives:
to promote economic and social progress and a high level of employment and to achieve
balanced sustainable development, in particular through the creation of an area without internal
frontiers, through the strengthening of economic and social cohesion and through the
establishment of economic and monetary union, ultimately including a single currency in
accordance with the provisions of this Treaty,
to assert its identity on the international scene, in particular through the implementation of a
common foreign and security policy including the progressive framing of a common defence
policy, which might lead to a common defence, in accordance with the provisions of Article 17,
to strengthen the protection of the rights and interests of the nationals of its Member States
through the introduction of a citizenship of the Union,
to maintain and develop the Union as an area of freedom, security and justice, in which the
free movement of persons is assured in conjunction with appropriate measures with respect to
external border controls, asylum, immigration and the prevention and combating of crime,
to maintain in full the acquis communautaire and build on it with a view to considering to what
extent the policies and forms of cooperation introduced by this Treaty may need to be revised
with the aim of ensuring the effectiveness of the mechanisms and the institutions of the
Community.
The objectives of the Union shall be achieved as provided in this Treaty and in
accordance with the conditions and the timetable set out therein while respecting the principle of
subsidiarity
11
Treaty of Nice (2003): 23. Declaration on the Future of Union (excerpt)

5. The process should address, inter alia, the following questions:


how to establish and monitor a more precise delimitation of powers between the
European Union and the Member States, reflecting the principle of subsidiarity;
the status of the Charter of Fundamental Rights of the European Union, proclaimed in
Nice, in accordance with the conclusions of the European Council in Cologne;
a simplification of the Treaties with a view to making them clearer and better understood
without changing their meaning;
the role of national parliaments in the European architecture.
6. Addressing the abovementioned issues, the Conference recognises the need to improve and
to monitor the democratic legitimacy and transparency of the Union and its institutions, in order
to bring them closer to the citizens of the Member States

Treaty on the Functioning of European Union: Articles 3, 4

Article 3
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union 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.

Article 4
1. The Union shall share competence with the Member States where the Treaties confer on it a
competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal
areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to
carry out activities, in particular to define and implement programmes; however, the exercise of that
competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to
carry out activities and conduct a common policy; however, the exercise of that competence shall not
result in Member States being prevented from exercising theirs.
12
European Court of Justice: Defrenne v Sabena (No 2) [1976] ECR 455 (C-43/75)
Excerpt

1 By a judgment of 23 April 1975, received at the Court Registry on 2 May 1975, the Cour du travail, Brussels,
referred to the Court under Article 177 of the EEC Treaty two questions concerning the effect and implementation
of Article 119 of the Treaty regarding the principle that men and women should receive equal pay for equal work.

2 These questions arose within the context of an action between an air hostess and her employer, Sabena SA,
concerning compensation claimed by the applicant in the main action on the ground that, between 15 February
1963 and 1 February 1966, she suffered as a female worker discrimination in terms of pay as compared with
male colleagues who were doing the same work as 'cabin steward'.

3 According to the judgment containing the reference, the parties agree that the work of an air hostess is identical
to that of a cabin steward and in these circumstances the existence of discrimination in pay to the detriment of the
air hostess during the period in question is not disputed.

The first question (direct effect of Article 119)

4 The first question asks whether Article 119 of the Treaty introduces 'directly into the national law of each
Member State of the European Community the principle that men and women should receive equal pay for equal
work and does it therefore, independently of any national provision, entitle workers to institute proceedings before
national courts in order to ensure its observance?'

5 If the answer to this question is in the affirmative, the question further enquires as from what date this effect
must be recognized.

6 The reply to the final part of the first question will therefore be given with the reply to the second question.

7 The question of the direct effect of Article 119 must be considered in the light of the nature of the principle of
equal pay, the aim of this provision and its place in the scheme of the Treaty.

8 Article 119 pursues a double aim.

9 First, in the light of the different stages of the development of social legislation in the various Member States,
the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually
implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as
compared with undertakings established in States which have not yet eliminated discrimination against women
workers as regards pay.

10 Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic
union, but is at the same time intended, by common action, to ensure social progress and seek the constant
improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the
Treaty.

11 This aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy
whose preliminary provision, Article 117, marks 'the need to promote improved working conditions and an
improved standard of living for workers, so as to make possible their harmonization while the improvement is
being maintained'.

12 This double aim, which is at once economic and social, shows that the principle of equal pay forms part of the
foundations of the Community.

13
13 Furthermore, this explains why the Treaty has provided for the complete implementation of this principle by the
end of the first stage of the transitional period.

14 Therefore, in interpreting this provision, it is impossible to base any argument on the dilatoriness and
resistance which have delayed the actual implementation of this basic principle in certain Member States.

15 In particular, since Article 119 appears in the context of the harmonization of working conditions while the
improvement is being maintained, the objection that the terms of this article may be observed in other ways than
by raising the lowest salaries may be set aside.

16 Under the terms of the first paragraph of Article 119, the Member States are bound to ensure and maintain 'the
application of the principle that men and women should receive equal pay for equal work'.

17 The second and third paragraphs of the same article add a certain number of details concerning the concepts
of pay and work referred to in the first paragraph.

18 For the purposes of the implementation of these provisions a distinction must be drawn within the whole area
of application of Article 119 between, first, direct and overt discrimination which may be identified solely with the
aid of the criteria based on equal work and equal pay referred to by the article in question and, secondly, indirect
and disguised discrimination which can only be identified by reference to more explicit implementing provisions of
a Community or national character.

19 It is impossible not to recognize that the complete implementation of the aim pursued by Article 119, by means
of the elimination of all discrimination, direct or indirect, between men and women workers, not only as regards
individual undertakings but also entire branches of industry and even of the economic system as a whole, may in
certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate
measures at Community and national level.

20 This view is all the more essential in the light of the fact that the Community measures on this question, to
which reference will be made in answer to the second question, implement Article 119 from the point of view of
extending the narrow criterion of 'equal work', in accordance in particular with the provisions of Convention No
100 on equal pay concluded by the International Labour Organization in 1951, Article 2 of which establishes the
principle of equal pay for work 'of equal value'.

21 Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down
by Article 119 must be included in particular those which have their origin in legislative provisions or in collective
labour agreements and which may be detected on the basis of a pureley legal analysis of the situation.

22 This applies even more in cases where men and women receive unequal pay for equal work carried out in the
same establishment or service, whether public or private.

23 As is shown by the very findings of the judgment making the reference, in such a situation the court is in a
position to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a
male worker performing the same tasks.

24 In such situation, at least, Article 119 is directly applicable and may thus give rise to individual rights which the
courts must protect.

25 Furthermore, as regards equal work, as a general rule, the national legislative provisions adopted for the
implementation of the principle of equal pay as a rule merely reproduce the substance of the terms of Article 119
as regards the direct forms of discrimination.

26 Belgian legislation provides a particularly apposite illustration of this point, since Article 14 of Royal Decree No
40 of 24 October 1967 on the employment of women merely sets out the right of any female worker to institute
14
proceedings before the relevant court for the application of the principle of equal pay set out in Article 119 and
simply refers to that article.

27 The terms of Article 119 cannot be relied on to invalidate this conclusion.

28 First of all, it is impossible to put forward an argument against its direct effect based on the use in this article of
the word 'principle', since, in the language of the Treaty, this term is specifically used in order to indicate the
fundamental nature of certain provisions, as is shown, for example, by the heading of the first part of the Treaty
which is devoted to 'Principles' and by Article 113, according to which the commercial policy of the Community is
to be based on 'uniform principles'.

29 If this concept were to be attenuated to the point of reducing it to the level of a vague declaration, the very
foundations of the Community and the coherence of its external relations would be indirectly affected.

30 It is also impossible to put forward arguments based on the fact that Article 119 only refers expressly to
'Member States'.

31 Indeed, as the Court has already found in other contexts, 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 the performance of the duties thus laid down.

32 The very wording of Article 119 shows that it imposes on States a duty to bring about a specific result to be
mandatorily achieved within a fixed period.

33 The effectiveness of this provision cannot be affected by the fact that the duty imposed by the Treaty has not
been discharged by certain Member States and that the joint institutions have not reacted sufficiently
energetically against this failure to act.

34 To accept the contrary view would be to risk raising the violation of the right to the status of a principle of
interpretation, a position the adoption of which would not be consistent with the task assigned to the Court by
Article 164 of the Treaty.

35 Finally, in its reference to 'Member States', Article 119 is alluding to those States in the exercise of all those of
their functions which may usefully contribute to the implementation of the principle of equal pay.

36 Thus, contrary to the statements made in the course of the proceedings this provision is far from merely
referring the matter to the powers of the national legislative authorities.

37 Therefore, the reference to 'Member States' in Article 119 cannot be interpreted as excluding the intervention
of the courts in direct application of the Treaty.

38 Furthermore it is not possible to sustain any objection that the application by national courts of the principle of
equal pay would amount to modifying independent agreements concluded privately or in the sphere of industrial
relations such as individual contracts and collective labour agreements.

39 In fact, since Article 119 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 119 may be
relied upon before the national courts and that these courts have a duty to ensure the protection of the 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.
15
The second question (implementation of Article 119 and powers of the Community and of the Member States)

41 The second question asks whether Article 119 has become 'applicable in the internal law of the Member
States by virtue of measures adopted by the authorities of the European Economic Community', or whether the
national legislature must 'be regarded as alone competent in this matter'.

42 In accordance with what has been set out above, it is appropriate to join to this question the problem of the
date from which Article 119 must be regarded as having direct effect.

43 In the light of all these problems it is first necessary to establish the chronological order of the measures taken
on a Community level to ensure the implementation of the provision whose interpretation is requested.

44 Article 119 itself provides that the application of the principle of equal pay was to be uniformly ensured by the
end of the first stage of the transitional period at the latest.

45 The information supplied by the Commission reveals the existence of important differences and discrepancies
between the various States in the implementation of this principle.

46 Although, in certain Member States, the principle had already largely been put into practice before the entry
into force of the Treaty, either by means of express constitutional and legislative provisions or by social practices
established by collective labour agreements, in other States its full implementation has suffered prolonged delays.

47 In the light of this situation, on 30 December 1961, the eve of the expiry of the time-limit fixed by Article 119,
the Member States adopted a Resolution concerning the harmonization of rates of pay of men and women which
was intended to provide further details concerning certain aspects of the material content of the principle of equal
pay, while delaying its implementation according to a plan spread over a period of time.

48 Under the terms of that Resolution all discrimination, both direct and indirect, was to have been completely
eliminated by 31 December 1964.

49 The information provided by the Commission shows that several of the original Member States have failed to
observe the terms of that Resolution and that, for this reason, within the context of the tasks entrusted to it by
Article 155 of the Treaty, the Commission was led to bring together the representatives of the governments and
the two sides of industry in order to study the situation and to agree together upon the measures necessary to
ensure progress towards the full attainment of the objective laid dwon in Article 119.

50 This led to be drawing up of successive reports on the situation in the original Member States, the most recent
of which, dated 18 July 1973, recapitulates all the facts.

51 In the conclusion to that report the Commission announced its intention to initiate proceedings under Article
169 of the Treaty, for failure to take the requisite action, against those of the Member States who had not by that
date discharged the obligations imposed by Article 119, although this warning was not followed by any further
action.

52 After similar exchanges with the competent authorities in the new Member States the Commission stated in its
report dated 17 July 1974 that, as regards those States, Article 119 had been fully applicable since 1 January
1973 and
that from that date the position of those States was the same as that of the original Member States.

53 For its part, in order to hasten the full implementation of Article 119, the Council on 10 February 1975 adopted
Directive No 75/117 on the approximation of the laws of the Member States relating to the application of the
principle of equal pay for men and women (OJ L 45, p. 19).

16
54 This Directive provides further details regarding certain aspects of the material scope of Article 119 and also
adopts various provisions whose essential purpose is to improve the legal protection of workers who may be
wronged by failure to apply the principle of equal pay laid down by Article 119.

55 Article 8 of this Directive allows the Member States a period of one year to put into force the appropriate laws,
regulations and administrative provisions.

56 It follows from the express terms of Article 119 that the application of the principle that men and women should
receive equal pay was to be fully secured and irreversible at the end of the first stage of the transitional period,
that is, by 1 January 1962.

57 Without prejudice to its possible effects as regards encouraging and accelerating the full implementation of
Article 119, the Resolution of the Member States of 30 December 1961 was ineffective to make any valid
modification of the time-limit fixed by the Treaty.

58 In fact, apart from any specific provisions, the Treaty can only be modified by means of the amendment
procedure carried out in accordance with Article 236.

59 Moreover, it follows from the foregoing that, in the absence of transitional provisions, the principle contained in
Article 119 has been fully effective in the new Member States since the entry into force of the Accession Treaty,
that is, since 1 January 1973.

60 It was not possible for this legal situation to be modified by Directive No 75/117, which was adopted on the
basis of Article 100 dealing with the approximation of laws and was intended to encourage the proper
implementation of Article 119 by means of a series of measures to be taken on the national level, in order, in
particular, to eliminate indirect forms of discrimination, but was unable to reduce the effectiveness of that article or
modify its temporal effect.

61 Although Article 119 is expressly addressed to the Member States in that it imposes on them a duty to ensure,
within a given period, and subsequently to maintain the application of the principle of equal pay, that duty
assumed by the States does not exclude competence in this matter on the part of the Community.

62 On the contrary, the existence of competence on the part of the Community is shown by the fact that Article
119 sets out one of the 'social policy' objectives of the Treaty which form the subject of Title III, which itself
appears in Part Three of the Treaty dealing with the 'Policy of the Community'.

63 In the absence of any express reference in Article 119 to the possible action to be taken by the Community for
the purposes of implementing the social policy, it is appropriate to refer to the general scheme of the Treaty and
to the courses of action for which it provided, such as those laid down in Articles 100, 155 and, where
appropriate, 235.

64 As has been shown in the reply to the first question, no implementing provision, whether adopted by the
institutions of the Community or by the national authorities, could adversely affect the direct effect of Article 119.

65 The reply to the second question should therefore be that the application of Article 119 was to have been fully
secured by the original Member States as from 1 January 1962, the beginning of the second stage of the
transitional period, and by the new Member States as from 1 January 1973, the date of entry into force of the
Accession Treaty.

66 The first of these time-limits was not modified by the Resolution of the Member States of 30 December 1961.

67 As indicated in reply to the first question, Council Directive No 75/117 does not prejudice the direct effect of
Article 119 and the period fixed by that Directive for compliance therewith does not affect the time-limits laid down
by Article 119 of the EEC Treaty and the Accession Treaty. 68 Even in the areas in which Article 119 has no
17
direct effect, that provision cannot be interpreted as reserving to the national legislature exclusive power to
implement the principle of equal pay since, to the extent to which such implementation is necessary, it may be
relieved by a combination of Community and national measures.

The temporal effect of this judgment

69 The Governments of Ireland and the United Kingdom have drawn the Court's attention to the possible
economic consequences of attributing direct effect to the provisions of Article 119, on the ground that such a
decision might, in many branches of economic life, result in the introduction of claims dating back to the time at
which such effect same into existence.

70 In view of the large number of people concerned such claims, which undertakings could not have foreseen,
might seriously affect the financial situation of such undertakings and even drive some of them to bankruptcy.

71 Although the practical consequences of any judicial decision must be carefully taken into account, it would be
impossible to go so far as to diminish the objectivity of the law and compromise its future application on the
ground of the possible repercussions which might result, as regards the past, from such a judicial decision.

72 However, in the light of the conduct of several of the Member States and the views adopted by the
Commission and repeatedly brought to the notice of the circles concerned, it is appropriate to take exceptionally
into account the fact that, over a prolonged period, the parties concerned have been led to continue with practices
which were contrary to Article 119, although not yet prohibited under their national law.

73 The fact that, in spite of the warnings given, the Commission did not initiate proceedings under Article 169
against the Member States concerned on grounds of failure to fulfil an obligation was likely to consolidate the
incorrect impression as to the effects of Article 119.

74 In these circumstances, it is appropriate to determine that, as the general level at which pay would have been
fixed cannot be known, important considerations of legal certainty affecting all the interests involved, both public
and private, make it impossible in principle to reopen the question as regards the past.

75 Therefore, the direct effect of Article 119 cannot be relied on in order to support claims concerning pay periods
prior to the date of this judgment, except as regards those workers who have already brought legal proceedings
or made an equivalent claim.

18
3rd Day October 24, 2012: Institutions and Law-Making in EU

Treaty on European Union: Articles 13

Article 13
1. The Union shall have an institutional framework which shall aim to promote its values, advance its
objectives, serve its interests, those of its citizens and those of the Member States, and ensure the
consistency, effectiveness and continuity of its policies and actions.
The Union's institutions shall be:
the European Parliament,
the European Council,
the Council,
the European Commission (hereinafter referred to as the Commission),
the Court of Justice of the European Union,
the European Central Bank,
the Court of Auditors.
2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in
conformity with the procedures, conditions and objectives set out in them. The institutions shall
practice mutual sincere cooperation.
3. 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.
4. 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.

Treaty on the Functioning of the European Union: Article 1, Article 288

Article 1
(...)
2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is
founded. These two Treaties, which have the same legal value, shall be referred to as the Treaties.

Article 288
To exercise the Union's competences, the institutions 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.

19
Charter of Fundamental Rights of the European Union: Article 52

Article 52
Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be
provided for by law and respect the essence of those rights and freedoms. Subject to the principle
of proportionality, limitations may be made only if they are necessary and genuinely meet objectives
of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on
European Union shall be exercised under the conditions and within the limits defined by those
Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention
for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those
rights shall be the same as those laid down by the said Convention. This provision shall not prevent
Union law providing more extensive protection.

European Court of Justice: Eugen Schmidberger, Internationale Transporte und


Planzge v Republik sterreich [2003] (C-112/00), excerpt

Summary of the facts

An environmental demonstration blocked an Austrian motorway crossing the Alps and the sole transit route
between Germany and Italy. The demonstration was announced a month beforehand. Schmidberger, an
international transporter, saw six of its trucks blocked for 30 hours. It sued the Austrian authorities that had
authorized the demonstration for damages. Schmidbergerr argued that its right to free movement, protected by
EU law, had been breached. The Austrian Court asked the European Court of Justice whether there was breach
of EU law where Austria permitted the demonstration on the basis that the demonstrators were excercising their
fundamental right of freedom of expression.

The questions referred for a preliminary ruling

46. It should be noted at the outset that the questions referred by the national court raise two distinct, albeit
related, issues.

47. First, the Court is asked to rule on whether the fact that the Brenner motorway was closed to all traffic for
almost 30 hours without interruption, in circumstances such as those at issue in the main proceedings, amounts
to a restriction of the free movement of goods and must therefore be regarded as a breach of Community law.
Second, the questions relate more specifically to the circumstances in which the liability of a Member State may
be established in respect of damage caused to individuals as a result of an infringement of Community law.

48. On the latter question, the national court asks in particular for clarification of whether, and if so to what extent,
in circumstances such as those of the case before it, the breach of Community law - if made out - is sufficiently
manifest and serious to give rise to liability on the part of the Member State concerned. It also asks the Court
about the nature and evidence of the damage to be compensated.

49. Given that, logically, this second series of questions need be examined only if the first issue, as defined in the
first sentence of paragraph 47 of the present judgment, is answered in the affirmative, the Court must first give a
ruling on the various points raised by that issue, which is essentially the subject of the first and fourth questions.

20
50. In the light of the evidence in the file of the main case sent by the referring court and the written and oral
observations presented to the Court, those questions must be understood as seeking to determine whether the
fact that the authorities of a Member State did not ban a demonstration with primarily environmental aims which
resulted in the complete closure of a major transit route, such as the Brenner motorway, for almost 30 hours
without interruption amounts to an unjustified restriction of the free movement of goods which is a fundamental
principle laid down by Articles 30 and 34 of the Treaty, read together, if necessary, with Article 5 thereof.

Whether there is a restriction of the free movement of goods

51. It should be stated at the outset that the free movement of goods is one of the fundamental principles of the
Community.

52. Thus, Article 3 of the EC Treaty (now, after amendment, Article 3 EC), inserted in the first part thereof, entitled
Principles, provides in subparagraph (c) that for the purposes set out in Article 2 of the Treaty the activities of the
Community are to include an internal market characterised by the abolition, as between Member States, of
obstacles to inter alia the free movement of goods.

53. The second paragraph of Article 7a of the EC Treaty (now, after amendment, Article 14 EC) provides that the
internal market is to comprise an area without internal frontiers in which the free movement of goods is ensured in
accordance with the provisions of the Treaty.

54. That fundamental principle is implemented primarily by Articles 30 and 34 of the Treaty.

55. In particular, Article 30 provides that quantitative restrictions on imports and all measures having equivalent
effect are prohibited between Member States. Similarly, Article 34 prohibits, between Member States, quantitative
restrictions on exports and all measures having equivalent effect.

56. It is settled case-law since the judgment in Case 8/74 Dassonville [1974] ECR 837, paragraph 5) that those
provisions, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or
indirect, actual or potential, to trade flows in intra-Community trade (see, to that effect, Case C-265/95
Commission v France [1997] ECR I-6959, paragraph 29).

57. In this way the Court held in particular that, as an indispensable instrument for the realisation of a market
without internal frontiers, Article 30 does not prohibit only measures emanating from the State which, in
themselves, create restrictions on trade between Member States. It also applies where a Member State abstains
from adopting the measures required in order to deal with obstacles to the free movement of goods which are not
caused by the State (Commission v France, cited above, paragraph 30).

58. The fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate
measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private
individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-
Community trade as is a positive act (Commission v France, cited above, paragraph 31).

59. Consequently, Articles 30 and 34 of the Treaty require the Member States not merely themselves to refrain
from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with
Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is
respected on their territory (Commission v France, cited above, paragraph 32). Article 5 of the Treaty requires the
Member States to take all appropriate measures, whether general or particular, to ensure fulfilment of the
obligations arising out of the Treaty and to refrain from any measures which could jeopardise the attainment of
the objectives of that Treaty.

60. Having regard to the fundamental role assigned to the free movement of goods in the Community system, in
particular for the proper functioning of the internal market, that obligation upon each Member State to ensure the
free movement of products in its territory by taking the measures necessary and appropriate for the purposes of
21
preventing any restriction due to the acts of individuals applies without the need to distinguish between cases
where such acts affect the flow of imports or exports and those affecting merely the transit of goods.

61. Paragraph 53 of the judgment in Commission v France, cited above, shows that the case giving rise to that
judgment concerned not only imports but also the transit through France of products from other Member States.

62. It follows that, in a situation such as that at issue in the main proceedings, where the competent national
authorities are faced with restrictions on the effective exercise of a fundamental freedom enshrined in the Treaty,
such as the free movement of goods, which result from actions taken by individuals, they are required to take
adequate steps to ensure that freedom in the Member State concerned even if, as in the main proceedings, those
goods merely pass through Austria en route for Italy or Germany.

63. It should be added that that obligation of the Member States is all the more important where the case
concerns a major transit route such as the Brenner motorway, which is one of the main land links for trade
between northern Europe and the north of Italy.

64. In the light of the foregoing, the fact that the competent authorities of a Member State did not ban a
demonstration which resulted in the complete closure of a major transit route such as the Brenner motorway for
almost 30 hours on end is capable of restricting intra-Community trade in goods and must, therefore, be regarded
as constituting a measure of equivalent effect to a quantitative restriction which is, in principle, incompatible with
the Community law obligations arising from Articles 30 and 34 of the Treaty, read together with Article 5 thereof,
unless that failure to ban can be objectively justified.

Whether the restriction may be justified

65. In the context of its fourth question, the referring court asks essentially whether the purpose of the
demonstration on 12 and 13 June 1998 - during which the demonstrators sought to draw attention to the threat to
the environment and public health posed by the constant increase in the movement of heavy goods vehicles on
the Brenner motorway and to persuade the competent authorities to reinforce measures to reduce that traffic and
the pollution resulting therefrom in the highly sensitive region of the Alps - is such as to frustrate Community law
obligations relating to the free movement of goods.

66. However, even if the protection of the environment and public health, especially in that region, may, under
certain conditions, constitute a legitimate objective in the public interest capable of justifying a restriction of the
fundamental freedoms guaranteed by the Treaty, including the free movement of goods, it should be noted, as
the Advocate General pointed out at paragraph 54 of his Opinion, that the specific aims of the demonstration are
not in themselves material in legal proceedings such as those instituted by Schmidberger, which seek to establish
the liability of a Member State in respect of an alleged breach of Community law, since that liability is to be
inferred from the fact that the national authorities did not prevent an obstacle to traffic from being placed on the
Brenner motorway.

67. Indeed, for the purposes of determining the conditions in which a Member State may be liable and, in
particular, with regard to the question whether it infringed Community law, account must be taken only of the
action or omission imputable to that Member State.

68. In the present case, account should thus be taken solely of the objective pursued by the national authorities in
their implicit decision to authorise or not to ban the demonstration in question.

69. It is apparent from the file in the main case that the Austrian authorities were inspired by considerations linked
to respect of the fundamental rights of the demonstrators to freedom of expression and freedom of assembly,
which are enshrined in and guaranteed by the ECHR and the Austrian Constitution.

70. In its order for reference, the national court also raises the question whether the principle of the free
movement of goods guaranteed by the Treaty prevails over those fundamental rights.
22
71. According to settled case-law, fundamental rights form an integral part of the general principles of law the
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 (see, inter alia, Case C-260/89 ERT [1991] ECR I-2925, paragraph
41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37, and Case C-94/00 Roquette
Frres [2002] ECR I-9011, paragraph 25).

72. The principles established by that case-law were reaffirmed in the preamble to the Single European Act and
subsequently in Article F.2 of the Treaty on European Union (Bosman, cited above, paragraph 79). That provision
states that [t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result
from the constitutional traditions common to the Member States, as general principles of Community law.

73. It follows that measures which are incompatible with observance of the human rights thus recognised are not
acceptable in the Community (see, inter alia, ERT, cited above, paragraph 41, and Case C-299/95 Kremzow
[1997] ECR I-2629, paragraph 14).

74. Thus, since both the Community and its Member States are required to respect fundamental rights, the
protection of those 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.

75. It is settled case-law that where, as in the main proceedings, a national situation falls within the scope of
Community law and a reference for a preliminary ruling is made to the Court, it must provide the national courts
with all the criteria of interpretation needed to determine whether that situation is compatible with the fundamental
rights the observance of which the Court ensures and which derive in particular from the ECHR (see to that
effect, inter alia, Case 12/86 Demirel [1987] ECR 3719, paragraph 28).

76. In the present case, the national authorities relied on the need to respect fundamental rights guaranteed by
both the ECHR and the Constitution of the Member State concerned in deciding to allow a restriction to be
imposed on one of the fundamental freedoms enshrined in the Treaty.

77. The case thus raises the question of the need to reconcile the requirements of the protection of fundamental
rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, more
particularly, the question of the respective scope of freedom of expression and freedom of assembly, guaranteed
by Articles 10 and 11 of the ECHR, and of the free movement of goods, where the former are relied upon as
justification for a restriction of the latter.

78. First, whilst the free movement of goods constitutes one of the fundamental principles in the scheme of the
Treaty, it may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of that
Treaty or for overriding requirements relating to the public interest, in accordance with the Court's consistent
case-law since the judgment in Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979] ECR 649.

79. Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the
ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the express
wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and freedom of
assembly are also subject to certain limitations justified by objectives in the public interest, in so far as those
derogations are in accordance with the law, motivated by one or more of the legitimate aims under those
provisions and necessary in a democratic society, that is to say justified by a pressing social need and, in
particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95 Familiapress [1997]
ECR I-3689, paragraph 26, Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 42, and Eur. Court HR, Steel

23
and Others v. The United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-
VII, 101).
80. Thus, unlike other fundamental rights enshrined in that Convention, such as the right to life or the prohibition
of torture and inhuman or degrading treatment or punishment, which admit of no restriction, neither the freedom
of expression nor the freedom of assembly guaranteed by the ECHR appears to be absolute but must be viewed
in relation to its social purpose. Consequently, the exercise of those rights may be restricted, provided that the
restrictions in fact correspond to objectives of general interest and do not, taking account of the aim of the
restrictions, constitute disproportionate and unacceptable interference, impairing the very substance of the rights
guaranteed (see, to that effect, Case C-62/90 Commission v Germany [1992] ECR I-2575, paragraph 23, and
Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18).

81. In those circumstances, the interests involved must be weighed having regard to all the circumstances of the
case in order to determine whether a fair balance was struck between those interests.

82. The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to
determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the
legitimate objective pursued, namely, in the present case, the protection of fundamental rights.

83. As regards the main case, it should be emphasised at the outset that the circumstances characterising it are
clearly distinguishable from the situation in the case giving rise to the judgment in Commission v France, cited
above, referred to by Schmidberger as a relevant precedent in the course of its legal action against Austria.

84. By comparison with the points of fact referred to by the Court at paragraphs 38 to 53 of the judgment in
Commission v France, cited above, it should be noted, first, that the demonstration at issue in the main
proceedings took place following a request for authorisation presented on the basis of national law and after the
competent authorities had decided not to ban it.

85. Second, because of the presence of demonstrators on the Brenner motorway, traffic by road was obstructed
on a single route, on a single occasion and during a period of almost 30 hours. Furthermore, the obstacle to the
free movement of goods resulting from that demonstration was limited by comparison with both the geographic
scale and the intrinsic seriousness of the disruption caused in the case giving rise to the judgment in Commission
v France, cited above.

86. Third, it is not in dispute that by that demonstration, citizens were exercising their fundamental rights by
manifesting in public an opinion which they considered to be of importance to society; it is also not in dispute that
the purpose of that public demonstration was not to restrict trade in goods of a particular type or from a particular
source. By contrast, in Commission v France, cited above, the objective pursued by the demonstrators was
clearly to prevent the movement of particular products originating in Member States other than the French
Republic, by not only obstructing the transport of the goods in question, but also destroying those goods in transit
to or through France, and even when they had already been put on display in shops in the Member State
concerned.

87. Fourth, in the present case various administrative and supporting measures were taken by the competent
authorities in order to limit as far as possible the disruption to road traffic. Thus, in particular, those authorities,
including the police, the organisers of the demonstration and various motoring organisations cooperated in order
to ensure that the demonstration passed off smoothly. Well before the date on which it was due to take place, an
extensive publicity campaign had been launched by the media and the motoring organisations, both in Austria
and in neighbouring countries, and various alternative routes had been designated, with the result that the
economic operators concerned were duly informed of the traffic restrictions applying on the date and at the site of
the proposed demonstration and were in a position timeously to take all steps necessary to obviate those
restrictions. Furthermore, security arrangements had been made for the site of the demonstration.

88. Moreover, it is not in dispute that the isolated incident in question did not give rise to a general climate of
insecurity such as to have a dissuasive effect on intra-Community trade flows as a whole, in contrast to the
24
serious and repeated disruptions to public order at issue in the case giving rise to the judgment in Commission v
France, cited above.

89. Finally, concerning the other possibilities envisaged by Schmidberger with regard to the demonstration in
question, taking account of the Member States' wide margin of discretion, in circumstances such as those of the
present case the competent national authorities were entitled to consider that an outright ban on the
demonstration would have constituted unacceptable interference with the fundamental rights of the demonstrators
to gather and express peacefully their opinion in public.

90. The imposition of stricter conditions concerning both the site - for example by the side of the Brenner
motorway - and the duration - limited to a few hours only - of the demonstration in question could have been
perceived as an excessive restriction, depriving the action of a substantial part of its scope. Whilst the competent
national authorities must endeavour to limit as far as possible the inevitable effects upon free movement of a
demonstration on the public highway, they must balance that interest with that of the demonstrators, who seek to
draw the aims of their action to the attention of the public.

91. An action of that type usually entails inconvenience for non-participants, in particular as regards free
movement, but the inconvenience may in principle be tolerated provided that the objective pursued is essentially
the public and lawful demonstration of an opinion.

92. In that regard, the Republic of Austria submits, without being contradicted on that point, that in any event, all
the alternative solutions which could be countenanced would have risked reactions which would have been
difficult to control and would have been liable to cause much more serious disruption to intra-Community trade
and public order, such as unauthorised demonstrations, confrontation between supporters and opponents of the
group organising the demonstration or acts of violence on the part of the demonstrators who considered that the
exercise of their fundamental rights had been infringed.

93. Consequently, the national authorities were reasonably entitled, having regard to the wide discretion which
must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be
achieved in the present case by measures less restrictive of intra-Community trade.

94. In the light of those considerations, the answer to the first and fourth questions must be that the fact that the
authorities of a Member State did not ban a demonstration in circumstances such as those of the main case is not
incompatible with Articles 30 and 34 of the Treaty, read together with Article 5 thereof.

The conditions for liability of the Member State

95. It follows from the answer given to the first and fourth questions that, having regard to all the circumstances of
a case such as that before the referring court, the competent national authorities cannot be said to have
committed a breach of Community law such as to give rise to liability on the part of the Member State concerned.

96. In those circumstances, there is no need to rule on the other questions referred concerning some of the
conditions necessary for a Member State to incur liability for damage caused to individuals by that Member
State's infringement of Community law.
On those grounds,

THE COURT, in answer to the questions referred to it by the Oberlandesgericht Innsbruck by order of 1 February
2000, hereby rules:

The fact that the authorities of a Member State did not ban a demonstration in circumstances such as
those of the main case is not incompatible with Articles 30 and 34 of the EC Treaty (now, after
amendment, Articles 28 EC and 29 EC), read together with Article 5 of the EC Treaty (now Article 10 EC).

25
4th Day October 25, 2012: Types of EU Law

Treaty Establishing European Economic Community: Article 12

Article 12
Member States shall refrain from introducing between themselves any new customs duties on
imports and exports or any charges having equivalent effect, and from increasing those which they
already apply in their trade with each other.

European Court of Justice: Van Gend en Loos [1963] ECR 1 (Case 26/62) Excerpt

Facts

Van Gend en Loos, a postal and transportation company, imported urea-formaldehyde from West Germany to the
Netherlands. The Dutch customs authorities charged them a tariff on the import. Van Gend en Loos objected,
submitting that the tariff was contrary to EC law (Article 12 EEC). Van Gend en Loos paid the tariff but then
sought to retrieve the money in the national court. The national court made a request for a preliminary ruling to
the European Court of Justice, asking whether the then Article 12 of the Treaty of Rome conferred rights on the
nationals of a member state that they could be enforced in national courts.

II The first question

AJurisdiction of the Court

The Government of the Netherlands and the Belgian Government challenge the jurisdiction of the Court on the
ground that the reference relates not to the interpretation but to the application of the Treaty in the context of the
constitutional law of the Netherlands, and that in particular the Court has no jurisdiction to decide, should the
occasion arise, whether the provisions of the EEC Treaty prevail over Netherlands legislation or over other
agreements entered into by the Netherlands and incorporated into Dutch national law. The solution of such a
problem, it is claimed, falls within the exclusive jurisdiction of the national courts, subject to an application in
accordance with the provisions laid down by Articles 169 and 170 of the Treaty.

However in this case the Court is not asked to adjudicate upon the application of the Treaty according to the
principles of the national law of the Netherlands, which remains the concern of the national courts, but is asked,
in conformity with subparagraph (a) of the first paragraph of Article 177 of the Treaty, only to interpret the scope
of Article 12 of the said Treaty within the context of Community law and with reference to its effect on individuals.
This argument has therefore no legal foundation.

The Belgian Government further argues that the Court has no jurisdiction on the ground that no answer which the
Court could give to the first question of the Tariefcommissie would have any bearing on the result of the
proceedings brought in that court.

However, in order to confer jurisdiction on the Court in the present case it is necessary only that the question
raised should clearly be concerned with the interpretation of the Treaty. The considerations which may have led a
national court or tribunal to its choice of questions as well as the relevance which it attributes to such questions in
the context of a case before it are excluded from review by the Court of Justice.

It appears from the wording of the questions referred that they relate to the interpretation of the Treaty. The Court
therefore has the jurisdiction to answer them.

26
This argument, too, is therefore unfounded.
BOn the substance of the Case

The first question of the Tariefcommissie is whether Article 12 of the Treaty has direct application in
national law in the sense that nationals of Member States may on the basis of this Article lay claim to
rights which the national court must protect.

To ascertain whether the provisions of an international treaty extend so far in their effects it is necessary
to consider the spirit, the general scheme and the wording of those provisions.

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 establishment of institutions endowed with sovereign rights, the
exercise of which affects Member States and also their citizens. Furthermore, it must be noted that the
nationals of the states brought together in the Community are called upon to cooperate in the
functioning of this Community through the intermediary of the European Parliament and the Economic
and Social Committee.

In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure
uniform interpretation of the Treaty by national courts and tribunals, confirms that the states 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.

With regard to the general scheme of the Treaty as it relates to customs duties and charges having
equivalent effect it must be emphasized that Article 9, which bases the Community upon a customs
union, includes as an essential provision the prohibition of these customs duties and charges. This
provision is found at the beginning of the part of the Treaty which defines the 'Foundations of the
Community'. It is applied and explained by Article 12.

The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a
negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states
which would make its implementation conditional upon a positive legislative measure enacted under
national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the
legal relationship between Member States and their subjects.

The implementation of Article 12 does not require any legislative intervention on the part of the states.
The fact that under this Article it is the Member States who are made the subject of the negative
obligation does not imply that their nationals cannot benefit from this obligation.

27
In addition the argument based on Articles 169 and 170 of the Treaty put forward by the three
Governments which have submitted observations to the Court in their statements of case 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 occasion arise, before a national court, any more than the
fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed
upon those subject to the Treaty are observed, precludes the possibility, in actions between individuals
before a national court, of pleading infringements of these obligations.

A restriction of the guarantees against an infringement of Article 12 by Member States to the procedures
under Article 169 and 170 would remove all direct legal protection of the individual rights of their
nationals. There is the risk that recourse to the procedure under these Articles would be ineffective if it
were to occur after the implementation of a national decision taken contrary to the provisions of the
Treaty.

The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the
supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of the Member States.

It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of
the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national
courts must protect.

III The second question

AThe jurisdiction of the Court

According to the observations of the Belgian and Netherlands Governments, the wording of this question appears
to require, before it can be answered, an examination by the Court of the tariff classification of ureaformaldehyde
imported into the Netherlands, a classification on which Van Gend & Loos and the Inspector of Customs and
Excise at Zaandam hold different opinions with regard to the 'Tariefbesluit' of 1947. The question clearly does not
call for an interpretation of the Treaty but concerns the application of Netherlands customs legislation to the
classification of aminoplasts, which is outside the jurisdiction conferred upon the Court of Justice of the European
Communities by subparagraph (a) of the first paragraph of Article 177.

The Court has therefore no jurisdiction to consider the reference made by the Tarief commissie.

However, the real meaning of the question put by the Tariefcommissie is whether, in law, an effective increase in
customs duties charged on a given product as a result not of an increase in the rate but of a new classification of
the product arising from a change of its tariff description contravenes the prohibition in Article 12 of the Treaty.

Viewed in this way the question put is concerned with an interpretation of this provision of the Treaty and more
particularly of the meaning which should be given to the concept of duties applied before the Treaty entered into
force.

Therefore the Court has jurisdiction to give a ruling on this question.

BOn the substance

It follows from the wording and the general scheme of Article 12 of the Treaty that, in order to ascertain
whether customs duties or charges having equivalent effect have been increased contrary to the

28
prohibition contained in the said Article, regard must be had to the customs duties and charges actually
applied at the date of the entry into force of the Treaty.

Further, with regard to the prohibition in Article 12 of the Treaty, such an illegal increase may arise from
a re-arrangement of the tariff resulting in the classification of the product under a more highly taxed
heading and from an actual increase in the rate of customs duty.

It is of little importance how the increase in customs duties occurred when, after the Treaty entered into
force, the same product in the same Member State was subjected to a higher rate of duty.

The application of Article 12, in accordance with the interpretation given above, comes within the
jurisdiction of the national court which must enquire whether the dutiable product, in this case
ureaformaldehyde originating in the Federal Republic of Germany, is charged under the customs
measures brought into force in the Netherlands with an import duty higher than that with which it was
charged on 1 January 1958.

The Court has no jurisdiction to check the validity of the conflicting views on this subject which have
been submitted to it during the proceedings but must leave them to be deterrnined by the national
courts.

(...)

THE COURT

in answer to the questions referred to it for a preliminary ruling by the Tariefcornmissie by decision of 16 August
1962, hereby rules:

1. Article 12 of the Treaty establishing the European Economic Community produces direct effects and creates
individual rights which national courts must protect.

2. In order to ascertain whether customs duties or charges having equivalent effect have been increased contrary
to the prohibition contained in Article 12 of the Treaty, regard must be had to the duties and charges actually
applied by the Member State in question at the date of the entry into force of the Treaty. Such an increase can
arise both from a re-arrangement of the tariff resulting in the classification of the product under a more highly
taxed heading and from an increase in the rate of customs duty applied.

European Court of Justice: Flaminio Costa v ENEL [1964] ECR 585 (6/64)

Facts

Mr. Costa was an Italian citizen who had owned shares in an electricity company and opposed to the
nationalisation of the electricity sector in Italy. He refused to pay his electricity bill, which amounted to 1,925 lira
(0.99), in protest and was sued for nonpayment by the newly created state electricity company, ENEL. In his
defence he argued that the nationalisation of the electricity industry violated the Treaty of Rome and the Italian
Constitution. The Italian judge, the Giudice Conciliatore of Milan referred the case first to the Italian Constitutional
Court and then to the European Court of Justice. The Italian Constitution Court gave judgement in March 1964,
ruling that while the Italian Constitution allowed for the limitation of sovereignty for international organisation like
the EEC, that did not upset that normal rule of statutory interpretation that where two statutes conflict the
subsequent one prevails. As a result the Treaty of Rome which was incorporated into Italian law in 1958 could not
prevail over the electricity nationalisation law which was enacted in 1962. In light of the decision of their
constitutional court the Italian government submitted to the ECJ that the Italian court's request for a preliminary

29
ruling from the ECJ was inadmissible on the grounds that as the Italian court was not empowered to set aside the
national law in question, a preliminary ruling would not serve any valid purpose.

(...)

On the submission that the court was obliged to apply the national law

The Italian Government submits that the request of the Giudice Conciliatore is 'absolutely inadmissible',
inasmuch as a national court which is obliged to apply a national law cannot avail itself of Article 177.

By contrast 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 transfer 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 a 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
jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the
discrimination prohibited by Article 7.

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 the right to act unilaterally, it does this by clear and precise provisions (for example
Articles 15, 93 (3), 223, 224 and 225). Applications, by Member States for authority to derogate from the Treaty
are subject to a special authorization procedure (for example Articles 8 (4), 17 (4), 25, 26, 73, the third
subparagraph of Article 93 (2), and 226) which would lose their purpose if the Member States could renounce
their obligations by means of an ordinary law.

The precedence of Community law is confirmed by Article 189, whereby a regulation 'shall be binding' and
'directly applicable in all Member States'. This provision, which is subject to no reservation, would be quite
meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail
over Community law.

It follows from all these observations that the law stemming from the Treaty, an independent source of law, could
not, because of its special and original nature, be overridden by domestic legal 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 transfer by the States from their domestic legal system to the Community legal system of the rights and
obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a
subsequent unilateral act incompatible with the concept of the Community cannot prevail. Consequently Article
177 is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the
Treaty arise.

30
Treaty of Lisbon (2009): 17. Declaration concerning primacy

The Conference recalls that, in accordance with well settled case 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 law
of Member States, under the conditions laid down by the said case law.

The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal
Service on the primacy of EC law as set out in 11197/07 (JUR 260):

Opinion of the Council Legal Service of 22 June 2007

It results from the case-law of the Court of Justice that primacy of EU law is a cornerstone principle of Union
law. According to the Court, this principle is inherent to the specific nature of the European Community. At the
time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641) there was no
mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be
included in the future treaty shall not in any way change the existence of the principle and the existing case-
law of the Court of Justice.

5th Day October 26, 2012: Proceedings before ECJ and Enforcement of
EU Law
Treaty on the Functioning of the European Union: Articles 267

Article 267
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 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.

31
European Court of Justice: Andrea Francovich and Danila Bonifaci and others v Italian
Republic [1991] ECR-I 5357 (C-6/90; C-9/90)

1 By orders of 9 July and 30 December 1989, which were received at the Court on 8 January and 15 January
1990 respectively, the Pretura di Vicenza (in Case C-6/90) and the Pretura di Bassano del Grappa (in Case C-
9/90) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions on
the interpretation of the third paragraph of Article 189 of the EEC Treaty and Council Directive 80/987/EEC of 20
October 1980 on the approximation of the laws of the Member States relating to the protection of employees in
the event of the insolvency of their employer (Official Journal 1980 L 283, p. 23).

2 Those questions were raised in the course of proceedings brought by Andrea Francovich and by Danila
Bonifaci and Others (hereinafter referred to as "the plaintiffs") against the Italian Republic.

3 Directive 80/987 is intended to guarantee employees a minimum level of protection under Community law in the
event of the insolvency of their employer, without prejudice to more favourable provisions existing in the Member
States. In particular it provides for specific guarantees of payment of unpaid wage claims.

4 Under Article 11 the Member States were required to bring into force the laws, regulations and administrative
provisions necessary to comply with the directive within a period which expired on 23 October 1983. The Italian
Republic failed to fulfil that obligation, and its default was recorded by the Court in its judgment in Case 22/87
Commission v Italy ([1989] ECR 143).

5 Mr Francovich, a party to the main proceedings in Case C-6/90, had worked for CDN Elettronica SnC in
Vicenza but had received only sporadic payments on account of his wages. He therefore brought proceedings
before the Pretura di Vicenza, which ordered the defendant to pay approximately LIT 6 million. In attempting to
enforce that judgment the bailiff attached to the Tribunale di Vicenza was obliged to submit a negative return. Mr
Francovich then claimed to be entitled to obtain from the Italian State the guarantees provided for in Directive
80/987 or, in the alternative, compensation.

6 In Case C-9/90 Danila Bonifaci and 33 other employees brought proceedings before the Pretura di Bassano del
Grappa, stating that they had been employed by Gaia Confezioni Srl, which was declared insolvent on 5 April
1985. When the employment relationships were discontinued, the plaintiffs were owed more than LIT 253 million,
which was proved as a debt in the company' s insolvency. More than five years after the insolvency they had
been paid nothing, and the receiver had told them that even a partial distribution in their favour was entirely
improbable. Consequently, the plaintiffs brought proceedings against the Italian Republic in which they claimed
that, in view of its obligation to implement Directive 80/987 with effect from 23 October 1983, it should be ordered
to pay them their arrears of wages, at least for the last three months, or in the alternative to pay compensation.

7 It was in those circumstances that the national courts referred the following questions, which are identical in
both cases, to the Court for a preliminary ruling:

"(1) Under the system of Community law in force, is a private individual who has been adversely affected
by the failure of a Member State to implement Directive 80/897 - a failure confirmed by a judgment of the Court of
Justice - entitled to require the State itself to give effect to those provisions of that directive which are sufficiently
precise and unconditional, by directly invoking the Community legislation against the Member State in default so
as to obtain the guarantees which that State itself should have provided and in any event to claim reparation of
the loss and damage sustained in relation to provisions to which that right does not apply?

(2) Are the combined provisions of Articles 3 and 4 of Council Directive 80/987 to be interpreted as
meaning that where the State has not availed itself of the option of laying down limits under Article 4, the State
itself is obliged to pay the claims of employees in accordance with Article 3?

32
(3) If the answer to Question 2 is in the negative, the Court is asked to state what the minimum
guarantee is that the State must provide pursuant to Directive 80/987 to an entitled employee so as to ensure that
the share of pay payable to that employee may be regarded as giving effect to the directive."

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

9 The first question submitted by the national courts raises two issues, which should be considered separately. It
concerns, first, the direct effect of the provisions of the directive which determine the rights of employees and,
secondly, the existence and scope of State liability for damage resulting from breach of its obligations under
Community law.

The direct effect of the provisions of the directive which determine the rights of employees

10 The first part of the first question submitted by the national courts seeks to determine whether the provisions of
the directive which determine the rights of employees must be interpreted as meaning that the persons
concerned can enforce those rights against the State in the national courts in the absence of implementing
measures adopted within the prescribed period.

11 As the Court has consistently held, a Member State which has not adopted the implementing measures
required by a directive within the prescribed period may not, against individuals, plead its own failure to perform
the obligations which the directive entails. Thus wherever the provisions of a directive appear, as far as their
subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of
implementing measures adopted within the prescribed period, be relied upon as against any national provision
which is incompatible with the directive or in so far as the provisions of the directive define rights which individuals
are able to assert against the State (judgment in Case 8/81 Becker v Finanzamt Muenster-Innenstadt [1982] ECR
53).

12 It is therefore necessary to see whether the provisions of Directive 80/987 which determine the rights of
employees are unconditional and sufficiently precise. There are three points to be considered: the identity of the
persons entitled to the guarantee provided, the content of that guarantee and the identity of the person liable to
provide the guarantee. In that regard, the question arises in particular whether a State can be held liable to
provide the guarantee on the ground that it did not take the necessary implementing measures within the
prescribed period.

13 With regard first of all to the identity of the persons entitled to the guarantee, it is to be noted that, according to
Article 1(1), the directive applies to employees' claims arising from contracts of employment or employment
relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1),
the latter provision defining the circumstances in which an employer must be deemed to be in a state of
insolvency. Article 2(2) refers to national law for the definition of the concepts of "employee" and "employer".
Finally, Article 1(2) provides that the Member States may, by way of exception and under certain conditions,
exclude claims by certain categories of employees listed in the annex to the directive.

14 Those provisions are sufficiently precise and unconditional to enable the national court to determine whether
or not a person should be regarded as a person intended to benefit under the directive. A national court need only
verify whether the person concerned is an employed person under national law and whether he is excluded from
the scope of the directive in accordance with Article 1(2) and Annex 1 (as to the necessary conditions for such
exclusion, see the judgments in Case 22/87 Commission v Italy, cited above, paragraphs 18 to 23, and Case C-
53/88 Commission v Greece [1990] ECR I-3917, paragraphs 11 to 26), and then ascertain whether one of the
situations of insolvency provided for in Article 2 of the directive exists.

33
15 With regard to the content of the guarantee, Article 3 of the directive provides that measures must be taken to
ensure the payment of outstanding claims resulting from contracts of employment or employment relationships
and relating to pay for the period prior to a date determined by the Member State, which may choose one of three
possibilities: (a) the date of the onset of the employer' s insolvency; (b) that of the notice of dismissal issued to the
employee concerned on account of the employer' s insolvency; (c) that of the onset of the employer' s insolvency
or that on which the contract of employment or the employment relationship with the employee concerned was
discontinued on account of the employer' s insolvency.

16 Depending on the choice it makes, the Member State has the option, under Article 4(1) and (2), to restrict
liability to periods of three months or eight weeks respectively, calculated in accordance with detailed rules laid
down in that article. Finally, Article 4(3) provides that the Member States may set a ceiling on liability, in order to
avoid the payment of sums going beyond the social objective of the directive. Where they exercise that option,
the Member States must inform the Commission of the methods used to set the ceiling. In addition, Article 10
provides that the directive does not affect the option of Member States to take the measures necessary to avoid
abuses and in particular to refuse or reduce liability in certain circumstances.

17 Article 3 of the directive thus leaves the Member State a discretion in determining the date from which
payment of claims must be ensured. However, as is already implicit in the Court' s case-law (see the judgments in
Case 71/85 Netherlands v FNV [1986] ECR 3855 and Case 286/85 McDermott and Cotter v Minister for Social
Welfare and Attorney General [1987] ECR 1453, paragraph 15), the right of a State to choose among several
possible means of achieving the result required by a directive does not preclude the possibility for individuals of
enforcing before the national courts rights whose content can be determined sufficiently precisely on the basis of
the provisions of the directive alone.

18 In this case, the result required by the directive in question is a guarantee that the outstanding claims of
employees will be paid in the event of the insolvency of their employer. The fact that Articles 3 and 4(1) and (2)
give the Member States some discretion as regards the means of establishing that guarantee and the restriction
of its amount do not affect the precise and unconditional nature of the result required.

19 As the Commission and the plaintiffs have pointed out, it is possible to determine the minimum guarantee
provided for by the directive by taking the date whose choice entails the least liability for the guarantee institution.
That date is that of the onset of the employer' s insolvency, since the two other dates, that of the notice of
dismissal issued to the employee and that on which the contract of employment or the employment relationship
was discontinued, are, according to the conditions laid down in Article 3, necessarily subsequent to the onset of
the insolvency and thus define a longer period in respect of which the payment of claims must be ensured.

20 The possibility under Article 4(2) of limiting the guarantee does not make it impossible to determine the
minimum guarantee. It follows from the wording of that article that the Member States have the option of limiting
the guarantees granted to employees to certain periods prior to the date referred to in Article 3. Those periods are
fixed in relation to each of the three dates provided for in Article 3, so that it is always possible to determine to
what extent the Member State could have reduced the guarantee provided for by the directive depending on the
date which it would have chosen if it had transposed the directive.

21 As regards Article 4(3), according to which the Member States may set a ceiling on liability in order to avoid
the payment of sums going beyond the social objective of the directive, and Article 10, which states that the
directive does not affect the option of Member States to take the measures necessary to avoid abuses, it should
be observed that a Member State which has failed to fulfil its obligations to transpose a directive cannot defeat
the rights which the directive creates for the benefit of individuals by relying on the option of limiting the amount of
the guarantee which it could have exercised if it had taken the measures necessary to implement the directive
(see, in relation to an analogous option concerning the prevention of abuse in fiscal matters, the judgment in
Case 8/81 Becker v Finanzamt Muenster-Innenstadt [1982] ECR 53, paragraph 34).

34
22 It must therefore be held that the provisions in question are unconditional and sufficiently precise as regards
the content of the guarantee.

23 Finally, as regards the identity of the person liable to provide the guarantee, Article 5 of the directive provides
that:

"Member States shall lay down detailed rules for the organization, financing and operation of the guarantee
institutions, complying with the following principles in particular:

(a) the assets of the institutions shall be independent of the employers' operating capital and be
inaccessible to proceedings for insolvency;

(b) employers shall contribute to financing, unless it is fully covered by the public authorities;

(c) the institutions' liabilities shall not depend on whether or not obligations to contribute to financing
have been fulfilled."

24 It has been submitted that since the directive provides for the possibility that the guarantee institutions may be
financed entirely by the public authorities, it is unacceptable that a Member State may thwart the effects of the
directive by asserting that it could have required other persons to bear part or all of the financial burden resting
upon it.

25 That argument cannot be upheld. It follows from the terms of the directive that the Member State is required to
organize an appropriate institutional guarantee system. Under Article 5, the Member State has a broad discretion
with regard to the organization, operation and financing of the guarantee institutions. The fact, referred to by the
Commission, that the directive envisages as one possibility among others that such a system may be financed
entirely by the public authorities cannot mean that the State can be identified as the person liable for unpaid
claims. The payment obligation lies with the guarantee institutions, and it is only in exercising its power to
organize the guarantee system that the State may provide that the guarantee institutions are to be financed
entirely by the public authorities. In those circumstances the State takes on an obligation which in principle is not
its own.

26 Accordingly, even though the provisions of the directive in question are sufficiently precise and unconditional
as regards the determination of the persons entitled to the guarantee and as regards the content of that
guarantee, those elements are not sufficient to enable individuals to rely on those provisions before the national
courts. Those provisions do not identify the person liable to provide the guarantee, and the State cannot be
considered liable on the sole ground that it has failed to take transposition measures within the prescribed period.

27 The answer to the first part of the first question must therefore be that the provisions of Directive 80/987 which
determine the rights of employees must be interpreted as meaning that the persons concerned cannot enforce
those rights against the State before the national courts where no implementing measures are adopted within the
prescribed period.

Liability of the State for loss and damage resulting from breach of its obligations under Community law

28 In the second part of the first question the national court seeks to determine whether a Member State is
obliged to make good loss and damage suffered by individuals as a result of the failure to transpose Directive
80/987.

29 The national court thus raises the issue of the existence and scope of a State' s liability for loss and damage
resulting from breach of its obligations under Community law.

35
30 That issue must be considered in the light of the general system of the Treaty and its fundamental principles.

(a) The existence of State liability as a matter of principle

31 It should be borne in mind at the outset that the EEC Treaty has created its own legal system, which is
integrated into the legal systems of the Member States and which their courts are bound to apply. The subjects of
that legal system are not only the Member States but also their nationals. Just as it imposes burdens on
individuals, Community law is also intended to give rise to rights which become part of their legal patrimony.
Those rights arise not only where they are expressly granted by the Treaty but also by virtue of obligations which
the Treaty imposes in a clearly defined manner both on individuals and on the Member States and the
Community institutions (see the judgments in Case 26/62 Van Gend en Loos [1963] ECR 1 and Case 6/64 Costa
v ENEL [1964] ECR 585).

32 Furthermore, it has been consistently held that the national courts whose task it is to apply the provisions of
Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the
rights which they confer on individuals (see in particular the judgments in Case 106/77 Amministrazione delle
Finanze dello Stato v Simmenthal [1978] ECR 629, paragraph 16, and Case C-213/89 Factortame [1990] ECR I-
2433, paragraph 19).

33 The full effectiveness of Community rules would be impaired and the protection of the rights which they grant
would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of
Community law for which a Member State can be held responsible.

34 The possibility of obtaining redress from the Member State is particularly indispensable where, as in this case,
the full effectiveness of Community rules is subject to prior action on the part of the State and where,
consequently, in the absence of such action, individuals cannot enforce before the national courts the rights
conferred upon them by Community law.

35 It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a
result of breaches of Community law for which the State can be held responsible is inherent in the system of the
Treaty.

36 A further basis for the obligation of Member States to make good such loss and damage is to be found in
Article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether
general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation
to nullify the unlawful consequences of a breach of Community law (see, in relation to the analogous provision of
Article 86 of the ECSC Treaty, the judgment in Case 6/60 Humblet v Belgium [1960] ECR 559).

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.

(b) The conditions for State liability

38 Although State liability is thus required by Community law, the conditions under which that liability gives rise to
a right to reparation depend on the nature of the breach of Community law giving rise to the loss and damage.

39 Where, as in this case, a Member State fails to fulfil its obligation under the third paragraph of Article 189 of
the Treaty to take all the measures necessary to achieve the result prescribed by a directive, the full effectiveness
of that rule of Community law requires that there should be a right to reparation provided that three conditions are
fulfilled.

36
40 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 content 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.

41 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.

42 Subject to that reservation, it is on the basis of the rules of national law on liability that the State must make
reparation for the consequences of the loss and damage caused. In the absence of Community legislation, it is
for the internal legal order of each Member State to designate the competent courts and lay down the detailed
procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from
Community law (see the judgments in Case 60/75 Russo v AIMA [1976] ECR 45, Case 33/76 Rewe v
Landwirstschaftskammer Saarland [1976] ECR 1989 and Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR
1805).

43 Further, the substantive and procedural conditions for reparation of loss and damage laid down by the national
law of the Member States must not be less favourable than those relating to similar domestic claims and must not
be so framed as to make it virtually impossible or excessively difficult to obtain reparation (see, in relation to the
analogous issue of the repayment of taxes levied in breach of Community law, inter alia the judgment in Case
199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595).

44 In this case, the breach of Community law by a Member State by virtue of its failure to transpose Directive
80/987 within the prescribed period has been confirmed by a judgment of the Court. The result required by that
directive entails the grant to employees of a right to a guarantee of payment of their unpaid wage claims. As is
clear from the examination of the first part of the first question, the content of that right can be identified on the
basis of the provisions of the directive.

45 Consequently, the national court must, in accordance with the national rules on liability, uphold the right of
employees to obtain reparation of loss and damage caused to them as a result of failure to transpose the
directive.

46 The answer to be given to the national court must therefore be that a Member State is required to make good
loss and damage caused to individuals by failure to transpose Directive 80/987.

On those grounds, THE COURT,

in answer to the questions submitted to it by the Pretura di Vicenza (in Case C-6/90) and the Pretura di Bassano
del Grappa (in Case C-9/90), by orders of 9 July 1989 and 30 December 1989 respectively, hereby rules:

1. The provisions of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the
Member States relating to the protection of employees in the event of the insolvency of their employer which
determine the rights of employees must be interpreted as meaning that the persons concerned cannot enforce
those rights against the State before the national courts where no implementing measures are adopted within the
prescribed period;

2. A Member State is required to make good loss and damage caused to individuals by failure to transpose
Directive 80/987/EEC.

37
6th Day October 29, 2012: Free Movement I

Treaty on the Functioning of the European Union: Articles 34-36

Article 34
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited
between Member States.

Article 35
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited
between Member States.

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 life of humans, animals or plants; the protection of national treasures
possessing artistic, historic or archaeological value; or the protection of industrial and commercial
property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary
discrimination or a disguised restriction on trade between Member States.

[Cases to be provided in the first week of lectures for presentations; same for days 7-10]

38
7th Day October 30, 2012: Free Movement II

Treaty on the Functioning of the European Union: Articles 45


Article 45
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 Member States as regards employment, remuneration and other conditions
ofwork 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 regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.

Treaty on the Functioning of the European Union: Articles 49, 56, 63

Article 49
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.

Article 56
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 the 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 63
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of
capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between
Member States and between Member States and third countries shall be prohibited.

39
8th Day October 31, 2012: Competition Law I
Treaty on the Functioning of the European Union: Article 101

Article 101
1. The following shall be prohibited as incompatible with the internal market: all agreements between
undertakings, decisions by associations of undertakings and concerted practices which may affect
trade between Member States and which have as their object or effect the prevention, restriction or
distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby
placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial usage, have no
connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
any agreement or category of agreements between undertakings,
any decision or category of decisions by associations of undertakings
any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or
economic progress, while allowing consumers a fair share of the resulting benefit, and which does
not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the
attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a
substantial part of the products in question.

40
9th Day November 1, 2012: Competition Law II

Treaty on the Functioning of the European Union: Article 102


Article 102
Any abuse by one or more undertakings of a dominant position within the internal market or in a
substantial part of it shall be prohibited as incompatible with the internal market in so far as it may
affect trade between Member States.

Such abuse may, in particular, consist in:


(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading
conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties,
thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial usage, have no
connection with the subject of such contracts.

Regulation 139/2004 (MR): Excerpt

Article 2
(...)
2. A concentration which would not significantly impede effective competition in the common market
or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant
position, shall be declared compatible with the common market.
3. A concentration which would significantly impede effective competition, in the common market or
in a substantial part of it, in particular as a result of the creation or strengthening of a dominant
position, shall be declared incompatible with the common market.

41