How to use this Book
At first glance the sheer mass of material contained in a book of EUlegislation can be daunting but it need not be. Statute books are not designed to be read from cover to cover like an ordinary text book but rather to be used as a tool to help dig out the most important sources of the law and apply them effectively in situations that matter most, in tutorials and in examinations. That is why the statutes have been carefully selected by those who teach the subject year in and year out to make them as relevant and accessible as possible for you to use.
To get the best use out of a statute book you must fully understand its structure and be familiar with its contents. Statute books are not props to be brought out from time to time for display at occasional or one-off events such as a tutorials or examinations. They must be used throughout the year as essential accessories, at least as important as a mobile phone or MP3 player! In my Law School it is a requirement to bring statute books to tutorials. Students are expected to refer directly to legislation, ideally citing chapter and verse to help answer questions. One of my colleagues even sends students away if they arrive without their statute books! We do this because we know that the more closely acquainted you are with statutory materials throughout the year the better you will be able to perform in examinations. This is particularly true with EU legislation which is very different in format, structure and language from domestic statutes.
All too often students bring a pristine copy of the statute book to a tutorial and are unable to identify the relevant provisions when a short period of basic preparation would have enabled them to find exactly what they need. The same is true of examinations. Some students leave the statute book untouched. Others frantically search through a book they are unfamiliar with, trying to find something, anything, that might help them to answer a question. Sometimes, when marking, we find whole extracts (often irrelevant) written out verbatim from the statute book as a substitute for answering the question adequately when what we require are concise answers backed up by brief references, or short quotes, from statutes and cases applying the law to the question.
As soon as you purchase the book you should familiarise yourself with the table of contexts and note that, in the Routledge Statute series, the listings in the indexes are alphabetical, chronological and thematic. This means that you can choose your preferred method to find a provision in a statute or, if you cannot remember the name or number of an EU Regulation or Directive or when it was adopted, you can still identify it by theme and, importantly, cross reference it to other relevant legislation. For example, in a question on free movement of workers you would be expected to refer to relevant provisions in the Treaty on the Functioning of the European Union (TFEU), such as Articles 18, 20, 21 and 45 TFEU, and also provisions in the Free Movement of Workers' Regulation, 492/2011, and the Citizens' Rights Directive, 2004/38.
One of the best techniques is to stop for a few moments to check the relevant provisions of EU legislation in the statute book every time you re-read your lecture notes, and when reading from text books, cases and journal articles. Seeing how legislation is applied in practice makes it far easier to understand how, for example, the different parts of the Treaties knit together, for example legal basis and substantive policy provisions, and also the relationship between the Treaties and Regulations, Directives and Decisions.
Remember, the statute book is your friend. If you get to know it well enough it will guide you through your studies from start to finish.
Professor Jeff Kenner
Interpreting Statutes
Scenario 1
It is now 2015 and, following recent research on the rise of liver disease among young people connected with increases in alcohol consumption, several EU Member States have introduced legislation requiring warning labels to be displayed on bottles of "alcopops" at the point of sale. The European Commission, concerned about impact of differences in the legal regimes in the Member States on the functioning of the internal market, in particular the free movement of goods, and also the health risks of "alcopops", has proposed a draft EU legislative act in the form of a Directive, based on Article 114 TFEU, which will require a warning label of a standard size to appear on all "alcopops" stating that 'excessive consumption may cause liver disease.' Member States would be permitted under the Directive to require larger labels and a stronger health warning.
You have been being asked to advise whether or not the EU has competence to adopt such legislation based on Article 114 and, if so, whether the proposed requirements are consistent with the principles of subsidiarity and proportionality?
Statute
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Consolidated version of the Treaty on European Union, OJ C 83, 30.3.10, p. 13 (TEU);
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Consolidated version of the Treaty on the Functioning of the European Union, OJ C 83, 30.3.10, p. 47 (TFEU);
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Protocol (No 2) on the application of the principles of proportionality and subsidiarity, OJ C 83, 30.3.2010, p. 201
Key terms to be included
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Article 5 TEU: 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
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Article 26 TFEU: 1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties. 2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties. 3. The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
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Article 114 TFEU: 1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. 2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed persons. 3. The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.
Article 5 TFEU grants the EU limited powers or competences to adopt its own legislation, including directives (see Article 288 TFEU). The EU is only competent to adopt such measures if they pursue objectives laid down in a legal basis provision, such as Article 114 TFEU, which also refers to internal market objectives in Article 26 TFEU. Legislative or "positive" harmonisation is envisaged to achieve free movement of goods (as an alternative to "negative" harmonisation arising from Article 34 TFEU and related provisions). The proposed directive must be justified by reference to internal market objectives alone and, if so, broader health objectives in Article 168 TFEU are relevant, although the latter provision does not provide a legal basis for harmonisation. Even if the EU has competence to harmonise the labelling of "alcopops" it must also decided whether it not it should exercise that competence, to conform with the principle of subsidiarity, as the internal market is not an area of exclusive competence. The EU institutions must decide whether or not such legislation is required at EU-level to achieve these objectives in conformity with Article 5 TFEU. Finally, if the answer to that question is yes, the proposed directive must be proportionate to those objectives based on the necessity test in the third paragraph of that provision. In this context the standard label can require 'as a base' a 'high level of [health] protection' under Article 114(3) TFEU, so there is scope for a Member State to maintain or introduce a stricter standard so long as it acts consistently with the objectives of the Treaties.
NOTE: Credit also for applying the Protocol on the application of the principles of subsidiarity and proportionality, and, in particular the provisions concerning the involvement of national parliaments in the pre-legislative process.
Scenario 2
Eighteen months ago Gennaro, who is an Italian national, arrived in Scotland to commence a three-year undergraduate degree. Unlike students from England and Wales he has not been charged fees. On arrival in the UK, Gennaro signed a declaration that he had adequate financial resources to pursue his studies. In practice, however, he has found the cost of living to be higher than he had expected and has now run short of funds. He has sought advice regarding applying for a student loan but has been told that these loans are only available to UK nationals and permanent residents. Gennaro now faces the prospect of not being able to complete his degree.
Advise Gennaro regarding his rights under EU law. Would your advice be any different if Gennaro had been legally resident in the UK for six years before embarking on his studies in Scotland?
Statute
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Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (right of citizens of the Union and their family members to move and reside freely within the territory of the Member States), OJ 2004 L158/77, as corrected.
NOTE: For the purpose of this question it is assumed that UK law is in full compliance with the Directive.
Key terms to be included
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Article 2(1): 'Union citizen' means 'any person having the nationality of a Member State.'
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Article 2(3): 'Host Member State' means 'the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.'
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Article 3(1): 'This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national...'
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Article 7(1): 'All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they ... (c) are enrolled at a private or public establishment ... for the principal purpose of following a course of study [and] ... assure the relevant national authority, by means of a declaration ... that they have sufficient resources for themselves ... not to become a burden on the social assistance system of the host Member State during their period of residence...'
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Article 16(1): 'Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there ...'
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Article 16(1): 'Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there...'
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Article 24 (1): '...all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty...'
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Article 24(2): 'By way of derogation from paragraph 1, the host Member State [shall not be obliged] ... prior to acquisition of the right of permanent residence, to grant maintenance aid for studies ... consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.'
As a national of a Member State - a 'Union citizen' (Article 2(1)) - exercising his right of free movement to study in another (host) Member State, Gennaro is within the scope of the Treaty (Articles 20 and 21 TFEU) and entitled to equal treatment with nationals of that State (Arts. 2(3) and 24(1) – also Article 18 TFEU) – hence his entitlement to equal treatment regarding Scottish law on university fees, the relevant law applicable to UK nationals living in that part of the host Member State. However, the UK was entitled to require him to sign the declaration on financial resources (Article 7(1)(c)) and is now able to apply the derogation in Article 24(2), also permitted under Articles 18 and 21 TFEU, to deny him a student loan. Under the alternative scenario, after six years of residence in the UK, Gennaro would have the status of a 'permanent resident' under Article 16(1) and be entitled to a student loan on the same basis as UK nationals under Article 24(2).
Scenario 3
In a protest against low pay and long working hours the lorry drivers union in Austria has announced that it will shortly mount a 72-hour long blockade of key transalpine routes used to transport goods between neighbouring Member States including Italy. The authorities in Austria have permitted the blockade, which it believes is consistent with the rights of the workers concerned to the freedoms of assembly, expression and association. The protest is taking place at the height of the fruit picking season. Austria believes that the proposed action is proportionate with the protection of these fundamental rights and has informed the European Commission of its position. The European Commission has been lobbied by peach and nectarine producers in Italy who demand that it threatens legal action against Austria on the basis that market access for their goods will be obstructed by the protest during the course of which their produce will be ruined.
Advise the European Commission regarding the action, if any, that they can take under Council Regulation 2679/98.
Statute
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Council Regulation 2679/98 of 7 December 2008 (functioning of the internal market in relation to the free movement of goods among the Member States), OJ 1998 L337/8.
Key terms to be included
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See references in the recitals of the preamble, especially (1),(2) and (3), regarding the objectives of the Regulation.
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Article 1(1): defines 'obstacle' ['action or inaction' attributable to a Member State which may constitute a breach of Arts. 34-40 TFEU] – and which (a) 'leads to serious disruption of the free movement of goods by physically or otherwise preventing, delaying or diverting their import into, export from or transport across a Member State, (b) 'causes serious loss to the individuals affected', and (c) 'requires immediate action in order to prevent any continuation, increase or intensification of the disruption or loss in question...'
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Article 1(2): defines 'inaction' as covering 'the case when the competent authorities of a Member State, in the presence of an obstacle caused by actions taken by private individuals, fail to take all necessary and proportionate measures within their powers with a view to removing the obstacle and ensuring the free movement of goods in their territory.'
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Article 2: 'This Regulation may not be interpreted as affecting in any way the exercise of fundamental rights as recognised in Member States, including the right or freedom to strike ...'
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Article 3(1)(b): on receipt of information from a Member State regarding a threatened 'obstacle' the Commission 'shall immediately transmit to the Member States that information and any information from any other source which it may consider relevant.'
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Article 3(2): procedure for the Member State concerned to 'respond'.
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Article 4(1): obligations on the Member State concerned when an 'obstacle occurs'. It shall: '(a) take all necessary and proportionate measures so that free movement of goods is assured in the territory of the Member State in accordance with the Treaty, and (b) inform the Commission of the actions which its authorities have taken or intend to take.'
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Article 4(2): transmission of this 'information' to other Member States.
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Article 5(1): notification obligation on the Commission if it concludes that an 'obstacle is occurring' [taking into account Article 2 above]. Commission gives reasons and 'shall request the Member State to take all necessary and proportionate measures to remove the said obstacle within a period which it shall determine with reference to the urgency of the case.'
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Article 5(4) and (5): time periods for a response by the Member State.
The proposed action would appear to amount – in accordance with the definitions in Article 1(1) - to an 'obstacle' as defined in Article 1(1) and Austria's decision to permit it could be construed by the Commission as 'inaction' by a Member State leading to a potential breach of Articles 34 and/or 35 TFEU, amounting to a quantitative restriction on imports and exports as a direct result of Austria's decision. Austria has notified the Commission in accordance with the Regulation. Therefore the Commission must pass this information to other Member States under Article 3 but can only take further action under Article 5 when the 'obstacle' actually occurs – when the blockade takes place – and, in effect, this gives scope for Austria to justify its decision to allow the blockade on proportionality grounds under Article 4. It is open for the Commission itself to decide that there is no 'obstacle' when account is taken of fundamental rights under Articles 2 and 5(2). Neither free movement of goods nor fundamental rights prevail so a balance must be found. This is a process-oriented Regulation. It does not grant the Commission powers to step in to prevent the 'obstacle' and allows a Member State to justify its 'inaction'. If the Commission believes that the Member State concerned has breached Articles 34 and/or 35 TFEU it has the ammunition it needs to bring infringement proceedings against Austria before the Court of Justice of the EU under Article 258 TFEU. The Commission only has a duty to transmit information to the Member States, not the producers affected, although the latter may have scope to bring proceedings in national courts to seek an injunction to stop the blockade or to recover damages for losses incurred should it take place, subject to national procedural rules. Courts would have to balance the fundamental economic freedoms in the Treaties with the protection of fundamental rights, with proportionality as the judicial method for resolving this conflict – see Case C-112/00 Schmidberger [2003] ECR I-5659, where the Court of Justice held that a decision by Austria to permit a shorter environmental protest on transalpine routes was limited, necessary and proportionate to the protection of fundamental rights and therefore did not violate Article 34 or 35 TFEU (then Articles 28 or 29 of the EC Treaty).
Scenario 4
Felicity is employed as Head of English at an independent school in the north of England. When she commenced her employment she was asked by the Head Teacher, Mr Peters, to sign an agreement to opt-out of the 48-hour working week in order to give the school as much flexibility as possible. UK legislation permits individuals to opt-out. Felicity reluctantly agreed as the new job was a good career move. Mr Peters told her that she would not normally have to work more than 50 hours per week. After six months Felicity found that she had been working for an average of 60 hours per week including teaching preparation. The long hours have been causing her to feel stressed and are disrupting her family life with her husband and young child. She has decided to withdraw in writing from her 'opt-out' agreement. Mr Peters has responded by demoting her to a more junior teaching position.
Advise Felicity regarding her rights to have a maximum amount of weekly working time and to be reinstated as Head of English or be compensated for her demotion.
Statute
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Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 (organisation of working time), OJ 2003 L299/9, consolidated text. NOTE: For the purpose of this question it is assumed that UK law is in full compliance with the Directive
Key terms to be included
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Article 1(1): purpose of the Directive is to lay down 'minimum safety and health requirements for the organisation of working time.'
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Article 2(1): 'working time' is defined as 'any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice.'
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Article 6: 'Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers ... (b) the average working time for each seven-day period, including overtime, does not exceed 48 hours.'
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Article 16: sets out the 'reference periods' for calculating average weekly working time - normally 17 weeks but can be extended up to 12 months (see Art 19).
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Article 17: 'derogations' - check to see if any of the list derogations apply.
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Article 22(1): 'A Member State shall have the option not to apply Art 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:
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no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period ... unless he has first obtained the worker's agreement to perform such work;
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no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work ...'
The UK's decision to permit the individual worker to opt-out from maximum weekly working time under Art 6 of the Directive is in compliance with Art 22(1). Felicity, as a worker within the scope of the Directive, initially gave her consent voluntarily to the opt-out and therefore she can be required to work longer than the maximum permitted average 48 hours per week over the reference period subject to the terms of her contract and the general obligation on the employer to protect her health and safety. This obligation is explicit in Arts 1, 6 and 22(1) and applies regardless of the opt-out and is therefore relevant if the long hours are causing stress detrimental to her health. In any event, the worker's consent to opt-out is an individual matter under the Directive and can be withdrawn at any stage within the meaning of Art 22(1)(a), in which case the ceiling on working time in Art 6 applies. It can also be argued that teaching preparation falls within the definition of 'working time' in Art 2(1) for the purpose of calculating her working hours. Felicity's demotion is a direct response to her decision to withdraw her consent to the opt-out and amounts to a 'detriment' under Art 22(b). She should therefore be advised to bring an action in the UK courts to be reinstated as Head of English and for financial compensation for any loss suffered. She can rely on UK legislation and demand that it is interpreted in conformity with the provisions of the Directive.
Scenario 5
Two weeks ago the European Commission received a complaint from Midi Cars Europe that two of its main rivals in motor car manufacturing, Maxi Cars and Motoriety, have embarked on a price-fixing arrangement designed to, they believe, literally, drive Midi Cars out of the EU market for motor cars. Maxi Cars and Motoriety both had turnovers in excess of €2 billion in the last business year. A 'mole' working for Maxi Cars has leaked to them some documentary evidence that supports their allegations. In response to this complaint the Commission immediately decided to investigate whether or not the allegations amount to an agreement, decision or concerted practice prohibited under Art 81 EC. Based on the leaked evidence the Commission launched a 'dawn raid' last week on Maxi Cars' headquarters in Berlin and Motoriety's premises in Leipzig in order to gather further evidence. The national competition authorities were notified and permission to carry out the inspection was authorised in camera by a national court. Maxi cars and Motoriety were not given any advance warning of the inspection. The Commission removed copies of nearly ten thousand documents along with material downloaded from computer hard drives. Both companies have responded promptly to the Commission's requests for further information and have attended a hearing with their legal representatives. Yesterday the Commission, having satisfied itself that there has been an intentional breach of Art 81(1) EC, published a decision to fine Maxi Cars and Motoriety €100 million each.
Advise Maxi Cars and Motoriety who believe that the European Commission has exceeded its powers and wish to bring an action for judicial review before the European Court of Justice.
Statute
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Council Regulation 1/2003 of 16 December 2002 (implementing Arts 81 and 82 of the Treaty), OJ 2003 L1/1, as amended.
Key terms to be included
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Article 1(1): 'Agreements, decisions and concerted practices caught by Art 81(1) of the Treaty which do not satisfy the conditions of Art 81(3) of the Treaty shall be prohibited, no prior decision to that effect being required.'
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Article 2: The 'burden of proving' an infringement of Art 81(1) rests on the Commission.
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Article 4: The Commission's powers are 'provided for by this Regulation.'
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Article 20(1): 'In order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.'
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Article 20(2): 'The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:
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to enter any premises, land and means of transport of undertakings and associations of undertakings;
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to examine the books and other records related to the business, irrespective of the medium on which they are stored;
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to take or obtain in any form copies of or extracts from such books or records;
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to seal any business premises and books or records for the period and to the extent necessary for the inspection;
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to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers.'
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Article 20(3)-(6): inspection procedures to be followed.
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Article 20(7)-(8): judicial procedures to be followed where appropriate.
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Article 23(2): 'The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Art 81 or Art 82 of the Treaty ... For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.'
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Article 23(3): 'In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.'
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Article 27: requirement to hold hearings and respect the rights of defence of the parties.
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Article 31: 'The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.'
Under Regulation 1/2003 (see Article 4) the European Commission has far reaching powers to carry out investigations and inspections after receiving complaints or on their own initiative and, on the basis of the evidence, to decide that these companies are in breach of Article 101(1) TFEU, and to fine them for those breaches without any prior decision – Article 1(1). You should refer to the Commission's powers of inspection in Article 20, which appear to indicate that it is acting within its powers and is receiving co-operation from the national authorities including the courts. The parties have also been granted a hearing and their rights of defence have been respected under Article 27. If the Commission has satisfied itself that there is a breach 'either intentionally or negligently' of Article 101(1) TFEU by Maxi Cars and Motoriety it may, under Article 23(2), impose a fine on them which reflects the gravity and duration of the infringement, Article 23(3), and, as the turnover figures show, does not exceed 10% of their total turnover for the preceding business year. Article 263 TFEU and Article 31 of the Regulation grant the Court of Justice unlimited jurisdiction to review the Commission's decisions. The Regulation is a very detailed and complex measure – and only the most relevant provisions are highlighted here – and therefore you should seek to identify both procedural breaches and also to challenge the substance of the Commission's case. Any possible violation of fundamental rights should be identified – reference can be made to the Charter of Fundamental Rights of the EU – and also the principles of proportionality, as the companies may be seeking to have the fine reduced if they can show that it is excessive.
NOTE: The two companies may also seek to justify their actions under Art 81(3) EC in the event that they are found to be in breach of Art 81(1) by the Court, in which case the burden of proof would shift to them to show justification based on the strict criteria laid down therein.
Scenario 6
Paula and Roger, both of whom are EU citizens, work as full-time staff in Brussels for World Peace Now (WPN), a non-governmental organisation. Recently a junior official working for the secretariat of the Council of the EU has told them about a 'secret sub-committee', known as the Trade and Defence Working Party, which meets weekly to discuss politically sensitive 'defence and export issues'. Notes are kept of the meetings and papers are issued to the members but the official does not have access to these documents. Paula and Roger believe that this committee is monitoring the export of weapons by companies based in the EU in order to decide whether or not to intervene to block such sales if the intended recipients are countries with a dubious human rights record. Paula and Roger have written to the General Secretariat of the Council demanding disclosure of:
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the dates and times of all meetings of the Trade and Defence Working Party during the last twelve months;
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the names of its members;
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agendas and minutes of the meetings;
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copies of all documents discussed at the meetings.
In reply the Council has admitted that the Working Party exists and has disclosed the names of its members. The Council has refused to issue them with copies of agendas, minutes or documents discussed at the meetings because these are 'sensitive documents' classified as 'TOP SECRET' by the Council in order protect 'essential interests' of the EU and the Member States in 'defence and military matters'.
Advise Paula and Roger who have brought a legal challenge against the Council's decision before the European Court of Justice.
Statute
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Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001, L145/43.
Key terms to be included
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Preamble, Recital 4: 'The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access ...'
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Article 2(1): 'Any citizen of the Union ... has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.'
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Article 2(3): 'This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.'
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Article 2(5): 'Sensitive documents as defined in Art 9(1) shall be subject to special treatment in accordance with that Article.'
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Article 3(a) defines 'document' as: 'any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility ...'
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Article 4(1): 'The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards ... - defence and military matters ...'
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Article 4(6): 'If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.'
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Article 9(1): 'Sensitive documents are documents originating from the institutions [classified as 'TOP SECRET'] in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Art 4(1)(a), notably public security, defence and military matters.'
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Article 9(4): 'An institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Art 4.'
The Regulation was introduced to elaborate on these principles and lay down detailed rules for the institutions to follow when responding to requests for disclosure of documents in accordance with the principle of transparency, Art 1 EU and Art 255 EC. Paula and Roger, in seeking to challenge the non-disclosure of certain documents, should rely on the presumption of transparency in Art 2(1) of the Regulation on the basis that the 'public interest' merits disclosure rather than refusal of access under Art 4(1)(a). Relying on established principles of EU law, it can be argued that transparency is a general principle of law and any exceptions should be interpreted narrowly and are subject to the principle of proportionality. On this basis Paula and Roger can question whether the documents denied to them should be classified as 'sensitive' under Art 9(1) as there is strong public interest in disclosure if it reveals that weapons are being sold secretly to countries where there are human rights' violations. Moreover, it can be argued, that the term 'defence and military matters' in Arts 4(1)(a) and 9(1) should not extend to contracts between private parties to sell arms which are essentially of a commercial nature. This would provide a basis for arguing for full disclosure in the public interest. Alternatively, as a fall-back position, Paula and Roger can argue that, applying Art 4(6), which is based on the principle of proportionality, even if these documents are correctly classified as 'sensitive' they should be partially disclosed to them in a censored form, with only those words or paragraphs that would actually be harmful to the public interest crossed out.
Scenario 7
Julie and Kevin work full-time for Plumbury District Council in Sussex. Julie prepares and cooks meals at a primary school. Kevin is one of the cooks in the staff restaurant at the Town Hall. Neither of them is professionally trained. Julie recently attended a leaving party for a colleague in the staff restaurant. When she was there she discovered - in conversation with one of the waiters - that the cooks in the staff restaurant, including Kevin, are paid approximately £5,000 more per year than cooks at schools, who are often referred to as 'dinner ladies'. Most of the cooks in the staff restaurant are male. When Julie asks her line manager for an explanation she is told that the higher pay in the staff restaurant reflects the fact that the chefs who work there have to prepare and cook 'fancy gastro food'.
Advise Julie who is seeking equal pay with Kevin.
Statute
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Directive 2006/54 of the European Parliament and of the Council of 5 July 2006 (on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation - recast), OJ 2006 L204/23. NOTE: For the purpose of this question it is assumed that UK law is in full compliance with the Directive.
Key terms to be included
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Article 1: 'The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. To that end, it contains provisions to implement the principle of equal treatment in relation to ... (b) working conditions, including pay ...'
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Article 2(1) defines:
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'direct discrimination' as 'where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation'
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'indirect discrimination' as 'where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;'
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Article 4 on 'equal pay' provides for: 'Prohibition of discrimination For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.'
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Article 6: the personal scope of the directive covers 'members of the working population'.
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Article 17 on the 'defence of rights'.
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Article 19(1): 'Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.'
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Article 25: 'Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that they are applied. The penalties, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.'
The Directive is concerned with implementation of the principle of 'equal treatment' of men and women in employment and occupation, Art 1, which is derived from Art 141 EC. As workers employed by a local authority, Julie and Kevin are within the personal scope of the directive, Art 6, and the material scope, Art 1(b). On this basis Julie seeks to rely, in an action before a national court, on the prohibition of discrimination in Art 4 on the basis that her work is 'the same work' or 'work to which equal value is attributed'. She can argue that she is being directly discriminated against in respect of pay because Kevin who is in a 'comparable situation' is paid more, Art 2(1)(a) and such discrimination 'shall be eliminated', Art 4. The local authority may point to a different classification system based on the higher quality of cooking required to work in the staff restaurant. This may not be sufficient to defeat Julie's 'equal value' argument. There is extensive case law to refer to on the concept of 'equal value', and the scope of direct and indirect discrimination and, in cases of indirect discrimination, the circumstances in which there can be objective justification. If Julie establishes a prima facie case of discrimination the burden of proof will switch to the local authority to show that there has been no breach of the principle of equal treatment, Art 19(1). It is possible that the local authority may be able to challenge a claim based on direct discrimination by arguing that their job classification system is neutral, and, indeed, they may show that there is no indirect discrimination either if the same criteria are used for both men and women, Art 4. Other factors, including the fact that one group of workers is predominantly male and the other female, may, however, suggest indirect discrimination as defined in Art 2(1)(b). If Julie succeeds she should be granted equal pay and compensation for the unlawful differential in pay for the whole period of discrimination relying on judicial application of Art 25.
Scenario 8
Jane, Peter and Branko are environmental activists based in three different EU member States who are seeking to put an end to the reliance of EU Member States on nuclear power. They are seeking to use to organise a "citizens' initiative" to put pressure on the EU to introduce legislation requiring all Member States to decommission their nuclear power stations and stop building new ones.
Advise Jane, Peter and Branko.
Statute
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Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens initiative, OJ L 65, 11.03.2011, p.1
Key terms to be included
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Article 2(1): '"citizens' initiative" means an initiative submitted to the Commission in accordance with this Regulation, inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties, which has received the support of at least one million eligible signatories coming from at least one quarter of all Member States ...'
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Article 3(1): 'The organisers shall be citizens of the Union and be of the age to be entitled to vote in elections to the European Parliament.'
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Article 3(2): 'The organisers shall form a citizens' committee of at least seven persons who are residents of at least seven different Member States.'
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Article 4(1): 'Prior to initiating the collection of statements of support from signatories for a proposed citizens' initiative, the organisers shall be required to register it with the Commission, providing the information set out in Annex II, in particular on the subject matter and objectives of the proposed citizens' initiative.'
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Article 4(2): 'Within two months from the receipt of the information set out in Annex II, the Commission shall register a proposed citizens' initiative under a unique registration number and send a confirmation to the organisers, provided that the following conditions are fulfilled: (a) the citizens' committee has been formed and the contact persons have been designated in accordance with Article 3(2); (b) the proposed citizens' initiative does not manifestly fall outside the framework of the Commission's powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties; (c) the proposed citizens' initiative is not manifestly abusive, frivolous or vexatious; and (d) the proposed citizens' initiative is not manifestly contrary to the values of the Union as set out in Article 2 TEU.'
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Article 5(1): 'The organisers shall be responsible for the collection of the statements of support from signatories for a proposed citizens' initiative which has been registered in accordance with Article 4.'
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Article 7(1): 'The signatories of a citizens' initiative shall come from at least one quarter of Member States.'
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Article 7(2): 'In at least one quarter of Member States, signatories shall comprise at least the minimum number of citizens set out, at the time of registration of the proposed citizens' initiative, in Annex I. Those minimum numbers shall correspond to the number of the Members of the European Parliament elected in each Member State, multiplied by 750.'
The citizens' initiative is designed to improve the participation of nationals of the Member States, as EU citizens, in the democratic life of the Union, see Articles 10(3) and 11(4) TEU. The Regulation provides the detailed mechanisms for EU citizens – at least one million form a significant number of Member States - to submit an appropriate proposal to the European Commission on a matter where they consider that a legal act of the Union is necessary to implement the Treaties, Article 11(4) TFEU.
The first task for Jane, Peter and Branko is to form a citizens' committee and to enlist at least four other persons from different Member States to join them (all of whom must be eleigible to vote in European Parliament elections), Article 3(2). Next they will have to register their proposed initiative with the European Commission, Article 4(1). Next they must start to prepare for the collection of signatories making sure that the minimum numbers from at least a quarter of the Member States (so at least seven of the 27 Member States), Article 7. In the meantime they must prepare arguments in support of the admissability of their proposal, Article 4(2). In particular, they would rely on Article 191(2) TFEU as a legal basis for the legislation proposal they envisage as being necessary to ensure 'a high level of protection' of the environment based on the 'precautionary principle'. If the Commission refuses to register the proposed initiative under Article 4(2) the named organisers can seek judicial review under Article 263 TFEU.
Scenario 9
European Lettings (EL) is a (fictional) estate agency aiming to provide an online letting service for rented properties throughout Europe. The agency is established in the UK but is seeking to access the rental market in Latvia. EL has just registered a property for rent in the Latvia capital Riga. The Latvian authorities have heard about EL's activities. EL has been informed that, under a (fictional) Latvian law, it is not possible to operate an estate agency without prior authorisation from the Latvian authorities and without having an establishment in Latvia.
Advise EL.
Statute
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Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27.12.06, p. 36.
NOTE:For the purposes of the question it is assumed that Latvia has implemented the Directive in full.
Key terms to be included
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Recital 33 of the preamble: 'The services covered by this Directive concern a wide variety of ever-changing activities, including ... real estate services such as estate agencies ... Those activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the Internet.'
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Article 2(1): 'This Directive shall apply to services supplied by providers established in a Member State.'
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Article 16(2): 'Member States may not restrict the freedom to provide services in the case of a provider established in another Member State by imposing any of the following requirements: (a) an obligation on the provider to have an establishment in their territory; (b) an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of [EU] law ...'
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Article 16(3): 'The Member State to which the provider moves shall not be prevented from imposing requirements with regard to the provision of a service activity, where they are justified for reasons of public policy, public security, public health or the protection of the environment and in accordance with paragraph 1. Nor shall that Member State be prevented from applying, in accordance with Community law, its rules on employment conditions, including those laid down in collective agreements.'
EL is a service provider based in one Member State seeking to access the market in another Member State, and is therefore within the scope of the Directive, Article 2(1) and Article 57 TFEU. Article 56 provides that restrictions on the freedom to provide services shall be prohibited in respect of national of Member States who are established in a Member State other than that of the person for whom the services are intended. Case law of the Court of Justice has established that prior authorisation requirements on service providers amount to prohibited restrictions but, so long as they are non-discriminatory, are capable of being justified by overriding reasons relating to the public interest so long as they are necessary and proportionate – see Case C-158 Kohll v Union Caisses de Maladie [1998] ECR I-1931.
The significance of this scenario is that the Services Directive applies to estate agencies, see the preamble. Note that it is necessary in all cases to see whether the service in question is excluded from the scope of the Directive, see the list in Article 2(2). As the Services Directive applies the law is stricter where a service provider is already established in a Member States, as is the case with EL. In those cases a prior authorisation requirement is prohibited as is a requirement to have an establishment in the host Member State, Article 16(2). This will be the case unless such requirements are justified under Article 16(3) for reasons of public policy, public security, public health or the protection of the environment and in accordance with the principles of non-discrimination, necessity and proportionality referred to in Article 16(1). It is not possible for Member States to rely on overriding reasons relating to the public interest even if the prior authorisation requirement is non-discriminatory.
EL should therefore argue that the (fictional) Latvian law contravenes both Article 16(2)(a) and (b) and cannot be justified under Article 16(3). EL should be advised to complain to the Commission, which may bring infringement proceedings under Article 258 TFEU, and initiate litigation in the Latvian courts relying on its rights under the services provisions of the TFEU and the Directive.
Scenario 10
Organic Farmers GB (OFGB) is an interest group representing farmers in the UK who use organic methods to produce crops etc. OFGB objects to a (fictitious) EU Regulation that has just been adopted by the European Parliament and the Council on the basis that the Regulation permits certain genetically modified crops to be labelled as "organic". OFGB is seeking to bring judicial review proceedings to annul the Regulation before the Court of Justice.
Advise OFGB whether or not it has legal standing to bring an action against the European Parliament and the Council before the Court of Justice of the EU in order to seek the annulment of the Regulation.
Statute
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Consolidated version of the Treaty on the Functioning of the European Union, OJ C 83, 30.3.10, p. 47 (TFEU). Charter of Fundamental Rights of the European Union (CFREU), OJ C 83, 30.3.2010, p. 389
Key terms to be included
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Article 263 TFEU, fourth paragraph: 'Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures ...'
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Article 47 CFREU: 'Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.'
According to the case law of the Court of Justice it is not possible for a general interest group to be granted legal standing to challenge an EU Regulation on the basis that such a group does not have 'individual concern', see Case C-50/00 P UPA v Council [2002] ECR I-6677.
However, this case law predates the Treaty of Lisbon, 2009 which amended Article 263 TFEU (old Article 230 EC) and granted the CFREU the 'same legal value' as the Treaties, Article 6(1) TEU.
The issue for the Court of Justice, in this scenario, is whether it is only necessary for OFGB to show 'direct concern' and not 'individual concern' on the basis that the Regulation is a 'regulatory act' under the newly worded fourth paragraph of Article 263 TFEU. The term 'regulatory act' is not referred to in either Article 288 TFEU, which lists the 'legislative' acts of the Union, including regulations, or Article 290(1) TFEU, which refers to the power of the European Commission to adopt 'non-legislative' acts. Regulatory acts are a remnant of the now defunct draft Treaty establishing a Constitution for Europe. If that text is taken to be the point of reference, the term 'regulatory acts' is restricted to 'non-legislative acts'. However, if account is taken of Article 47 CFREU it can be argued that a broader reading is required whereby a 'regulatory act' should be taken to include any EU legislative act against which it is not possible to seek an effective remedy before a national court or tribunal. OFGB would have to argue that, as it is a Regulation having general application, under Article 288 TFEU, it would not be possible to challenge it before the UK courts. It is therefore necessary for the Court of Justice to grant legal standing to OFGB to enable to represent its members – who collectively have 'direct concern'. Legal standing will enable OFGB to show the grounds upon which it is seeking annulment of the Regulation.
