THREE IDEAS: A CASE STUDY ON THE SCOPE OF EU LAW PROTECTING AGAINST DISCRIMINATION

Transcription

1 THREE IDEAS: A CASE STUDY ON THE SCOPE OF EU LAW PROTECTING AGAINST DISCRIMINATION Mattias Derlén & Johan Lindholm * ABSTRACT: The issue of when EU law applies, its scope, is obviously important and yet it has no clear answer. Two extreme positions are that EU law has a general scope, which it does not, and that all EU law provisions have different scopes, which clarifies nothing. This article explores the middle ground by seeking to identify underlying ideas capable of explaining when different EU law provisions apply on the national level and why seemingly similar provisions differ in scope. The article studies under what conditions an individual seeking protection against discrimination can invoke EU law on the national level and concludes that EU law provisions preventing discrimination differ greatly in scope but that such differences can be explained by the fact that they are based on different ideas: the idea of the internal market, the idea of actor equivalence, or the idea of a Europe without borders. Table of Contents I. What Is the Scope of EU Law and How Come I Don t Know This Already?... 2 II. The Idea of the Internal Market: Protection against Discrimination under the Treaties... 5 A. The Fundamental Freedoms... 5 B. The Equal Pay Provision... 6 III. The Idea of Actor Equivalence: Fundamental Rights... 8 A. Introduction... 8 B. Category 1 - Implementing EU law... 8 C. Category 2 - Restricting EU Law... 9 D. A Third Category - or an Unnecessary Complication? E. The Idea of Actor Equivalence - Two Actors, One System IV. The Idea of a Europe Without Borders: The General Principle of Non-Discrimination on Grounds of Nationality V. Some Final Thoughts Towards a General Theory of the (Not General) Scope of EU Law * The authors are Doctors of Law and Senior Lecturers in Law at Umeå University, Sweden. 1

2 I. What Is the Scope of EU Law and How Come I Don t Know This Already? What is the scope of EU law? Many students of EU law have faced this deceptively simple question, only to discover that it is yet another of those important issues in EU law without an easy answer. Instead, we have come to expect EU law to show up in the most unexpected situations. The issue of non-discrimination is illustrative of this phenomenon that has aptly been described as EU law s Jack-in-the-Box effect. 1 Discrimination is broadly defined as the application of different rules to comparable situations or the application of the same rule to different situations. 2 Combating discrimination is an aim of the Union 3 and of many substantive EU law rules but the scope of these rules differs significantly. Here are four examples of such rules that we will return to and examine more closely below. First, Article 45 TFEU protects against the discrimination of workers on grounds of nationality but can only be relied on by workers. Second, Article 18 TFEU prohibits any type of discrimination on the ground of nationality but only [w]ithin the scope of application of the Treaties. Third, Article 157(1) TFEU prohibits gender discrimination and this applies to both the Member States and private employers but only when the unequal treatment concerns remuneration for work. Fourth, EU law prohibits discrimination in other situations as a fundamental right but this only applies to the Member States and only in situations that fall within the scope of European Union law 4 including when a Member State implements EU law or restricts a right under EU law. This article seeks to find some order in what seems like randomness in the scope of EU law rules protecting against discrimination by exploring a seemingly simple question: under what conditions can an individual seeking protection against discrimination invoke EU law on the national level? The examination covers Treaty provisions and general principles but not legislative acts whose scope is normally defined quite clearly in the act itself. 5 The optimal outcome of this examination would be a precise, succinct, and general definition of the scope of EU law. One might also expect a general definition to exist considering that sources of EU law, as mentioned above, refer 1 Vilhelmsson, Jack-in-the-box theory of European Community law in Eriksson and Hurri (Eds.), Dialectic of Law and Reality (Forum Iuris, 1999). 2 Case 279/93, Finanzamt Köln-Altstadt v. Schumaker, [1995] ECR I-249, para Art. 3(3) TEU. 4 See e.g. Case C-555/07, Kücükdeveci v. Swedex GmbH & Co. KG, judgment of 19 January 2010, nyr, para 23. The operative part has also been phrased Community law or Union law. 5 See e.g. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, , 22; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, , 16; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373, , 37. 2

3 to the scope of the Treaties and of Union law. However, no such general scope exists. Instead, we identify three ideas that explain the scope of provisions preventing discrimination and the difference in scope between them: the idea of the internal market, the idea of actor equivalence, and the idea of a Europe without borders. Moreover, while these three ideas do not explain the scope of EU law entire and can certainly be supplemented by other ideas they clarify the scope of many of its core provisions as they apply to other situations than those involving discrimination. The meaning of scope should be clarified before proceeding with the examination. Scope can be divided into four aspects or requirements that must be satisfied in order for EU law to apply. Two of these aspects are relatively unproblematic. The territorial scope of EU law is defined explicitly in the Treaties: EU law applies to the Member States and some, but not all, of the overseas territories. 6 The limitation in temporal scope of EU law is normally also quite clear: as a general rule the Treaties apply to the Member State from the day of accession, 7 and legislation enters into force at a given day. 8 Even the scope of general principles of EU law and the Court s interpretation of law may exceptionally be temporally limited. 9 This article focuses on the remaining two aspects of scope. The personal scope of EU law identifies to what persons EU law applies, 10 on whom it places rights and obligations. Article 20(2) TFEU defines the general personal scope of EU law: Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. However, this gives little practical guidance. Despite its wording Art. 20 does not mean that non-eu-citizens can never rely on EU law. 11 Also, most individual Treaty provisions narrow the personal scope, 6 Art. 52 TEU and Art. 355 TFEU. Literally, these provisions actually define the territorial scope of the Treaties but the must reasonably apply equally to other sources of EU law emanating from the Treaties in the absence of any specific limitation, such as the possibility of only directing a Directive to certain Member States in Art. 288 TFEU. The fact that an action has occurred outside these territories does not however necessarily mean that it is out of reach of European Union law. See e.g. Case 214/94, Boukhalfa v. Germany, [1996] ECR I-2253 (holding that the prohibition against discrimination based on nationality can apply in non-member States). 7 Case C-122/96, Saldanha and MTS Securities Corporation v. Hiross Holding AG, [1997] ECR I- 5325, paras Either as specified in the act itself or a within a certain time following publication in the Official Journal. See e.g. Case C-342/93, Gillespie and Others v. Northern Health and Social Services Boards, Department of Health and Social Services, Eastern Health and Social Services Board and Southern Health and Social Services Board, [1996] ECR I-492, para 19 (concluding that national measures discriminating with regard to maternal leave was contrary to a directive but that it did not apply at the time of the facts in the case). 9 See e.g. Case 43/75, Defrenne v. Sabena (II), [1976] ECR 455, paras (limiting the horizontal direct effect of Art. 157(1) TEUF, then Art. 119 EEC, to the time after April 8, 1976); Case C-104/98, Buchner and Others v. Sozialversicherungsanstalt der Bauern, [2000] ECR I- 3625, para 39 (explaining the criteria for limiting the temporal scope of an interpretation). 10 Spaventa, Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects, 45 CML Rev. (2008), 13 45, at p For example, in later years much of the discussion concerning the personal scope of EU law has concerned third country nationals, primarily (but not exclusively) with regard to immigration and asylum issues. See e.g. Guild and Peers, Out of the Ghetto? The Personal Scope of EU Law in 3

4 defining its specific personal scope more or less clearly. For example, it follows from Articles 45 and 57 TFEU that only workers and service providers respectively can exercise the rights provided therein but it has been left to the ECJ to determine which persons qualify as such. 12 The personal scope is sometimes distinguished from the material scope of EU law. 13 While personal scope defines who can rely on EU law, the material scope determines in which situations EU law applies. 14 Distinguishing between personal and material scope clarifies the concept of scope and the distinction is quite clear in certain areas of law. 15 The two are however closely related and largely interchangeable as a question of scope can frequently be phrased either in personal terms ( does this person enjoy this right? ) or in material terms ( is this situation covered by the rule? ) without impacting the analysis or the answer. 16 Therefore, the term scope is used broadly herein to refer to the issue of when EU law can be relied on and this includes both personal and material aspects of scope unless otherwise stated. Scope should be distinguished from the related issue of substance, what rights and obligations individuals enjoy, 17 not examined herein. 18 Substance and scope may at times be closely related, for example with regard to the fundamental freedoms. However, in other areas of law there are fundamental differences in the underlying rationale of scope and substance. One example of such an area is the protection of fundamental rights. That fundamental rights forms part of Union law can be attributed to Member States pressuring the EU to develop beyond the achievement of an internal market and as a compromise necessary to sustain the principle of supremacy. 19 These factors are however incapable of explaining under what conditions fundamental rights apply on the national level. Consequently, it is wise to clearly distinguish the former issue, substance, when examining the latter, scope. Peers and Rogers (Eds.), EU Immigration and Asylum Law Text and Commentary (Martinus Nijhoff Publishers, 2006), pp See e.g. Case 238/83, Caisse d'allocations Familiales de la Région Parisienne v. Mr and Mrs Meade, [1984] ECR 2631, para 7; Joined Cases 286/82 and 26/83, Luisi and Carbone v. Ministero del Tesoro, [1984] ECR 377, para 10; Case 196/87, Steymann v. Staatssecretaris van Justitie, [1989] ECR 6159, para See e.g. Case C-85/96, Martínez Sala v. Freistaat Bayern, [1998] ECR I-2691, paras Spaventa, op. cit. supra note 10, p For example with regard to the application of Art. 18 TFEU discussed further infra Part IV. 16 See also discussion infra Part II.A. 17 But see Spaventa, op. cit. supra note 10, p. 14 (arguing that with regard to legislation that is capable of conferring rights on individuals the material scope defines the potential rights that such individuals might claim. ) 18 Nor do we aspire to define which areas of national law are substantively incompatible with EU law. 19 See further infra Part III.B. 4

5 II. The Idea of the Internal Market: Protection against Discrimination under the Treaties A. The Fundamental Freedoms The rights of free movement of goods, workers, services, and capital are arguably among the most important in EU law and the scope of Treaty provisions laying down these rights is therefore of central importance. These provisions also contain some of the most important provisions in EU law preventing discrimination since assuring equal treatment has been crucial for achieving the internal market. 20 These provisions scope is the subject of many judgments by the European Court of Justice but some of the most illustrative concern the application of EU law to sports. In the first of these cases, Walrave, two Dutch nationals argued that a rule requiring the pacemaker in cycling competitions to have the same nationality as the stayer constituted discrimination on grounds of nationality contrary to the free movement of workers. 21 The issue put before the ECJ was quite purely one concerning the scope of the ban on discrimination in Article 45 TFEU. The Court interpreted the scope of Article 45 in the light of the objectives of the Union as defined in the Treaties and, more specifically, the term economic activity, a phrase at the time found in Article 2 EEC. Pursuing this line of reasoning, the Court established that sporting activities fall within the scope of Article 45 if they constitute economic activity. 22 The ECJ followed this line of reasoning in subsequent cases involving sports concluding that having regard to the objectives of the Community, sport is subject to Community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty 23 and, conversely, that aspects of sport that do not constitute economic activity might fall outside the scope of Community law. 24 The Court s language suggests, quite strongly, that European Union law has a general scope and that it is limited to economic activities. This is misleading. However, it reveals the immense importance that the ECJ places on the idea of the internal market when determining the scope of the fundamental freedoms. 20 See More, The Principle of Equal Treatment: From Market Unifier to Fundamental Right? in Craig and de Burca (Eds.), The Evolution of EU Law (Oxford University Press, 1999), pp , at p Case 36/74, Walrave and Koch v. Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo, [1974] ECR 1405, paras Ibid., paras Case 13/76, Donà v. Mantero, [1976] ECR 1333, para 12; Case C-415/93, Union royale belge des sociétés de football association ASBL v. Bosman, Royal club liégeois SA v. Bosman and others and Union des associations européennes de football (UEFA) v. Bosman, [1995] ECR I-4921, para 73; Case 176/96, Lehtonen and Castors Canada Dry Namur-Braine ASBL v. Fédération royale belge des sociétés de basket-ball ASBL (FRBSB), [2000] ECR I-2681, para 32 (emphasis added). 24 Case C-51/96 and C-191/97, Deliège v. Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo (C-51/96) and Pacquée (C-191/97), [2000] ECR I-2549, paras , para 44 qouted (emphasis added). 5

6 The European Court of Justice has applied the same line of reasoning to other sectors interpreting the scope of the fundamental freedoms in light of the aim of establishing an internal market for economic activities. However, in many situations it has done so when determining who or what constitutes goods, workers, services, and so on. 25 The Court s case law concerning the application of fundamental freedoms illustrate how the underlying idea of the internal market and the accompanying focus on economic activity defines the scope of these rights in a way that cuts across the distinction between personal and material scope who, as mentioned, are closely connected. 26 The idea of the internal market impacts the scope of the fundamental freedoms in different respects. First, it is primarily economic actors that are relevant to the internal market and it is therefore only they who can be holders of the rights connected to the fundamental freedoms, including the right not to be discriminated. Second, only situations that are likely to impact movement between Member States are relevant from the perspective of the internal market and, therefore, only situations that involve a cross-border dimension fall within the scope of the fundamental freedoms. 27 Also, the fundamental freedoms have a particularly extensive scope in that obligations created through the Treaties, including not to discriminate, apply not only to Member States but may also bind private organizations and individuals. According to the Court, the reason for imposing such duties on private parties is that the abolishment of discrimination and other obstacles to free movement would otherwise be compromised. 28 There is thus a quite clear connection between the scope of these provisions and the realization of the internal market. B. The Equal Pay Provision When discussing the idea of the internal market and EU law rules preventing discrimination, protection against gender discrimination deserves special attention. According to Article 157(1) TFEU, also known as the equal pay provision, [e]ach 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. 25 See e.g. Steymann, op. cit. supra note 12, para 14 (concluding that Article 2 of the EEC Treaty must be interpreted as meaning that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work. ). 26 See supra Part I. 27 See also further infra Part V. 28 See e.g. Walrave, op. cit. supra note 21, paras ; Bosman, op. cit. supra note 23, paras ; Case C-281/98, Agonese v. Cassa di Risparmio di Bolzana SpA, [2000] ECR I-4161, paras ; Case C-341/05, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet and Others, [2007] ECR I-11767, para 98; Case C-438/05, International Transport Workers Federation and Finnish Seamen s Union v. Viking Line ABP and OÜ Viking Line Eesti, [2007] ECR I-10779, paras

7 The equal pay provision was the only provision in the Rome Treaty that mentioned gender equality and is as such of fundamental importance to the protection of gender equality in EU law. However, despite the fact that the equal pay provision promotes equality between men and women, it was not primarily the pursuit of gender equality that caused the Member States to include the provision in the Treaties. Like the fundamental freedoms, the equal pay provision is founded on the idea of the internal market. More specifically, the provision was included to allow businesses in France, which had enacted equal pay laws, to compete on equal terms with businesses from Member States lacking such laws. 29 The right to equal pay can in this respect be regarded as a supplement to the fundamental freedoms by ensuring that competition between actors in different Member States is not distorted due to women being paid lower wages. That the equal pay provision is based on the idea of the internal market rather than protecting a fundamental right to equal treatment of men and women is reflected in its scope. First, like the free movement of workers only those who are economically active, more precisely gainfully employed, fall within the provision s scope. Second, the provision only covers discrimination with regard to salary and other remuneration for work. This is narrower than Article 45 TFEU which includes remuneration but also discrimination with regard to other conditions of employment. That Article 157 s scope is limited to pay appears related to the aim of ensuring competition on equal terms within the internal market and that unequal treatment in other respects was considered less likely to impact the internal market. 30 Third, with regard to the necessity of a cross-border dimension the idea of the internal market operates in the opposite direction, giving Article 157 a broader scope than Article 45: unequal wages is capable of distorting the internal market by lowering the cost of goods and services even if the employee does not move to another Member State. Article 157 therefore covers situations where a person has not exercised his or her right to free movement. 31 Finally, like the prohibition against discrimination of workers on grounds on nationality, the prohibition against unequal pay enjoys horizontal direct effect Cichowski, Women s Rights, the European Union, and Supranational Constitutionalism, 38 Law and Society Review (2004), pp , at pp. 493, 501; Defeis, Equality and the European Union, 32 Georgia Journal of International and Comparative Law (2004), pp , at pp See also Defrenne II, op. cit. supra note 9, para 9; Council Directive 75/117/EEC of 10 February 1975 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, preamble ( implementation of the principle that men and women should receive equal pay contained in Article 119 of the Treaty is an integral part of the establishment and functioning of the common market ). 30 This is partially supported by the fact that the Court has emphasized the employer s contribution to a benefit when determining if it constitutes pay for purposes of Art. 157 TFEU. Compare Case 80/70, Defrenne v. Belgium (I), [1971] ECR 445 and Case C-262/88, Barber v. Guardian Royal Exchange Assurance Group, [1990] ECR I-1889, paras (reaching opposite conclusions regarding two otherwise similar pension schemes). 31 See e.g. Defrenne II, op. cit. supra note Defrenne II, op. cit. supra note 9, para 40. 7

8 III. The Idea of Actor Equivalence: Fundamental Rights A. Introduction Despite the Court s language in cases concerning the application of EU law to sports, EU law does not have a general scope that includes all economic activities and excludes all non-economic activities. 33 This is clear when considering the difference in scope of the prohibition of gender discrimination with regard to salaries and gender discrimination in other situations; the scope of Article 157 stands in stark contrast to that of the general right to gender equality under EU law. The difference between the two is made clear in the third case adjudicated by the ECJ concerning Gabrielle Defrenne. Whereas the Court ruled in Defrenne II that she could rely directly on Article 157(1) TFEU against her employer, it declared in Defrenne III that EU law and, more specifically, the general principle of equal treatment under EU law protected her against gender discrimination in the work place in other regards than unequal remuneration but that this right did not bind her employer. 34 The scope of the general principle of equal treatment is broader than the principle of equal pay in that it applies beyond situations concerning salaries. On the other hand, the scope is narrower in that it only applies to the Member State and only in certain situations. As we shall explain in this section, the scope of fundamental rights (of which equal treatment of women and men is an example) is dictated by a completely different idea than the internal market, namely the idea of actor equivalence. Following the case law of the ECJ, Member States are bound to respect fundamental rights in situations where national legislation falls within the field of application of Community law. 35 Two categories are frequently referred to in the literature as indicating the scope of application of fundamental rights vis-à-vis the Member States, 36 here referred to as implementing EU law and restricting EU law. B. Category 1 - Implementing EU law In Wachauf the ECJ for the first time firmly declared that Member States must respect fundamental rights when implementing EU law. 37 The message in Wachauf has been repeated in other cases, also concerning other EU measures, such as directives in the Booker case. 38 In discussing why the ECJ extended the 33 See supra Part II.A. 34 Case 149/77, Defrenne v. Sabena (III), [1978] ECR 1365, paras Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd v. Grogan and others, [1991] ECR I-4685, para See e.g. Hettne and Eriksson (Eds.), EU-rättslig metod (Norstedts Juridik, 2005), pp Case 5/88, Wachauf v. Bundesamt für Ernährung und Forstwirtschaft, [1989] ECR Joined Cases C-20/00 and C-64/00, Booker Aquaculture Ltd, trading as Marine Harvest McConnell and Hydro Seafood GSP Ltd v. The Scottish Ministers, [2003] ECR I-7411, para 88. 8

9 requirements of fundamental rights to the Member States in Wachauf we have to distinguish between the issue why fundamental rights were introduced in the EU legal order in the first place (in the Stauder case 39 ) and why fundamental rights were extended to the Member States (in Wachauf). The former development was pushed through by the Member States, mainly Germany and Italy, concerned by the lack of fundamental rights protection in community law. 40 The latter development was, in our opinion, driven by rather different interests, namely those of uniformity and equivalence. As will be developed more in Part III.E below, the scope of application of fundamental rights can be understood as an example of actor equivalence, in other words, that the effect of EU law on citizens should not vary depending on whether the action is performed by the Union or the Member State. C. Category 2 - Restricting EU Law The second category where Member States are bound to respect fundamental rights is when they are restricting rights and freedoms provided for by EU law. This was established in the ERT case, 41 where Greece sought to limit the free movement of services by establishing a broadcasting monopoly. The ECJ declared that Member States must respect fundamental rights when justifying derogations from the basic provisions of the internal market. 42 Thus, only measures fulfilling the requirements of fundamental rights are acceptable as justification for deviating from the internal market rules. The message of ERT was repeated in later cases. For some time it was unclear whether the requirements of ERT were limited to situations when Member States rely on an explicit derogation in the Treaties, such as (what is now) Articles 36 and 45(3) TFEU. If that was the case, use of mandatory requirements would fall outside of the scope of fundamental rights. Some cases indicated this interpretation, 43 based on the general idea that successful use of mandatory requirements did not provide for an exception, for example to Article 36, but took the situation in question outside the scope of the Article entirely. 39 Case 29/69, Stauder v. City of Ulm Sozialamt, [1969] ECR Hartley, European Union Law in a Global Context (Cambridge University Press, 2004), p Due and Gulmann concede that the need to ensure the supremacy of Community law was part of the explanation for the inclusion of fundamental rights as general principles of EC law, but they argue that this step was necessary in a wider sense, in order for Community law to be accepted as a legal system, see Due and Gulmann, Community Fundamental Rights as part of national law in Scritti in onore di Giuseppe Federico Mancini, vol. II (Giuffré, 1998), pp , at pp Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v. Dimotiki Etairia Pliroforissis and Kouvelas and Avdellas and others, [1991] ECR I Ibid., para Joined cases 60-61/84, Cinéthèque SA and others v. Fédération nationale des cinémas français, [1985] ECR 2605, para 26 and further discussion in Besselink, The Member States, the National Constitutions and the Scope of the Charter, 8 MJ (2001),

10 However, this line of thinking was rejected by the ECJ in Familiapress regarding Austrian legislation limiting the possibility of using prize competition on magazines. 44 The ECJ found the Austrian measure to be an MEQR, affecting the content of products along the lines of Cassis de Dijon 45. Austria relied on the need to preserve press diversity as a mandatory requirement. While the Court accepted that press diversity could constitute a mandatory requirement, it stated that the justification must be interpreted in the light of fundamental rights, in this case the freedom of expression. 46 Thus, national measures relying on mandatory requirements must respect fundamental rights in the same manner as national measures relying on express derogations. As noted by Weiler, 47 this is hardly surprising. In both cases we can identify a prima facie breach of EU law and distinguishing between them when it comes to fundamental rights would be artificial. Perhaps the most well known example of this aspect of fundamental rights is the Grogan case. Here the ECJ avoided the (very sensitive) issue by concluding that the activities of Grogan and his fellow students did not constitute free movement of services, and thus the Irish legislation did not restrict said freedom. 48 D. A Third Category - or an Unnecessary Complication? These two categories are claimed to indicate the scope of application of fundamental rights vis-à-vis the Member States. 49 The first situation (Wachauf) is sometimes described as positive integration, while the second situation (ERT) represents negative integration. 50 However, many scholars add a third category, stating that fundamental rights can also be invoked against Member States in other situations. For example, Groussot adds a third category, encompassing situations where action by the Member States otherwise "[fall] within the framework of Community law". 51 Within this category Groussot mainly discuss the development of what is now Articles 18 and 20 TFEU. Craig and de Búrca state that fundamental rights can be used in situations other than the main 44 Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag, [1997] ECR I Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), [1979] ECR Familiapress, op. cit. supra note 44, paras Weiler, The Constitution of Europe (Cambridge University Press, 1999), pp Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan and others, [1991] ECR I See e.g. Hettne and Eriksson, op. cit. supra note 36, pp Besselink, op. cit. supra note 43, p Groussot, Creation, Development and Impact of the General Principles of Community Law: Towards a jus commune europaeum? (Faculty of Law, Lund University 2005), pp Similarly, Reichel discusses what is now Arts. 18 and 20 TFEU as part of her discussion of the ERT category. Reichel, God förvaltning i EU och i Sverige (Jure förlag AB, 2006), pp

11 categories and that the issue is difficult. 52 Tridimas gives a number of examples of situations falling within the scope of general principles and fundamental rights, going beyond the two main situations. 53 He notes, inter alia, that Member State action is reviewable even when it goes beyond minimum requirements imposed by the Union, 54 when the Member State utilizes a mere possibility to act according to Union legislation, 55 when Member States introduce penalties for violating EU law even though this is not explicitly required by the Union act in question, 56 when Member States undermine an EU act, 57 and when Member States affect an interest protected by EU law 58. We argue that when it comes to the scope of fundamental rights, the introduction of a third category is an unnecessary complication as the first two categories are sufficient to describe its scope and the content of the third category can, more logically, be distributed to other categories, significantly simplifying the discussion. Firstly, a number of situations can actually be seen as belonging to the two main categories, if the latter are not understood in an unduly narrow sense. For example, category 1 (Wachauf) encompasses situations of Member States implementing EU law. The concept of implementation can be understood in a narrow and a wide sense. The narrow interpretation would indicate that Member States are bound by fundamental rights only when their action is directly and entirely prescribed by EU law. On the other hand, a wider definition would include all situations where the Member State action is somehow founded upon EU law. If one adopts the latter definition, a number of situations described by Tridimas as Member State action otherwise falling within the scope of EU law are actually examples of category 1. For example, in Booker, the national legislation was according to the ECJ founded on a Union act, thereby causing the situation to fall within the scope of fundamental rights, even though it went beyond the minimum requirements of the Union act in question. While the national legislation was not required by EU law the latter was the source and foundation for the national action, which was de facto an extension of the Union action. Similarly, the scenario in Klensch, where a Member State making use of a mere possibility to act was sufficient to push national legislation inside the scope of fundamental rights, is in fact a replica of the situation in Wachauf, where Germany had made use of a possibility in the relevant regulation to award 52 Craig and de Búrca, EU Law, 4th ed. (Oxford University Press, 2008), pp Tridimas, The General Principles of EU Law, 2nd ed. (Oxford University Press, 2006), pp Booker, op. cit. supra note Joined Cases /85, Klensch and others v. Secrétaire d'état à l'agriculture et à la Viticulture, [1986] ECR Case 77/81, Zuckerfabrik Franken GmbH v. Germany, [1982] ECR Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96, Garage Molenheide BVBA (C- 286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research & Development NV (BRD) (C-401/95) and Sanders BVBA (C-47/96) v. Belgium, [1997] ECR I Case 207/86, Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v. Commission, [1988] ECR

12 compensation to farmers who discontinued the production of milk. In both cases the national action was directly founded upon the EU act in question. Finally, in Zuckerfabrik Franken the penalties adopted by the Member State were, while not expressly required by EU law, a direct consequence of the Union act and therefore for all intents and purposes an extension of the EU action in the national arena. The same approach can be used with regard to category 2 (ERT), comprising restrictions of EU law. A narrow understanding of this concept would limit it to use of express derogations to the rules of the internal market. However, this is an unnecessarily strict understanding of the concept. We argue that category 2 includes all situations where Member States in any way restrict existing EU law, whether by use of an express derogation or not. This interpretation is confirmed by the approach of the ECJ in Familiapress. As noted above, the court examined the Austrian legislation in the light of fundamental rights despite the fact that Austria relied on a mandatory requirement (press diversity) and not a Treaty derogation. When understood in this wider sense, category 2 includes Garage and Apesco which Tridimas places in the third category. There is no conceptual difference between restricting the freedoms of the internal market and undermining another EU act (Garage) or affect another interest protected by EU law (Apesco). In all three cases Union law has identified particular interests or rights, which cannot be altered by the Member States without fulfilling the requirements of fundamental rights. Secondly, aspects of the proposed third category should not be included in a discussion concerning the scope of application of fundamental rights. As noted above, Groussot analyses Articles 18 and 20 TFEU in connection with a discussion of the scope of fundamental rights. While the issues of fundamental rights and non-discrimination on the grounds of nationality might seem obviously connected, we argue that the scope of application of the latter is better understood from the point of view of a different idea as compared to fundamental rights. 59 Finally, it should be noted that the introduction of the Charter of Fundamental Rights, made legally binding and put on par with the Treaties by Article 6 TEU, has not changed the basic scope of the fundamental rights regime of the Union. It follows from Article 6(1) TEU that the Charter "shall not extend in any way the competence of the Union as defined in the Treaties". 60 Regarding the application of fundamental rights in the Member States some confusion has arisen due to the wording of Article 51(1) of the Charter. The latter Article determines the Charter s scope of application, stating that it applies to the institutions and bodies of the European Union and to the Member States "only when they are 59 See further infra Part IV. 60 Similarly, Art. 51(2) of the Charter itself states that "[t]he Charter does not establish any new power or task for the Community or the Union, or modify powers or tasks defined by the Treaties". However, the accuracy of this statement is challenged in the legal literature, as the Charter undoubtedly contains some novel ideas, such as the right to strike. See e.g. Hellner, Skyddet av grundläggande fri- och rättigheter i framtidens EU (Sieps, 2003), p

13 implementing Union law". However, the intention appears to have been to codify existing ECJ case law, thus encompassing both category 1 and category E. The Idea of Actor Equivalence - Two Actors, One System We argue that there is a philosophy or a basic idea underlying the approach of the ECJ regarding the scope of application of fundamental rights, namely the idea of actor equivalence. According to this idea the Member States are bound by fundamental rights whenever they play the game of EU law. The Member States are viewed as an extension of the Union and individuals are to be guaranteed the same protection, no matter if the EU or the Member States are acting. The idea of EU law as a uniform and coherent system is repeatedly emphasized by the ECJ. When the ECJ proclaimed EU law to be a "new legal order" in van Gend en Loos 62 it obviously did not take the "order" part lightly. On the contrary, it has been working continuously to safeguard that EU law is a complete system of law, an essential part of which is the uniformity of EU law. The idea that the individual should not be affected by whether the Union or the Member States are acting (playing the game of EU law) is evident in for example Bergaderm where the ECJ employed the same criteria to assess Union liability as was used in the earlier case Brasserie du Pecheur 63 concerning state liability, emphasizing that the protection of the individual should not vary depending on whether the damage was caused by the EU or the Member State. 64 The Union is bound by fundamental rights in all its activities and will always be required to live up to an appropriate level of protection 65. Fundamental rights are, in our view, the rules of the game. The Union has no inherent competence in the area of fundamental rights 66 and rarely acts for the express purpose of advancing those rights, but fundamental rights are rules to be obeyed whenever the Union is acting. To use a simple football analogy, the purpose of the game might be to score goals but the rules of the game prohibit certain behavior, such as moving the football with your hands, and these rules must be obeyed whenever playing the game and the Union can never play anything but the EU game. The Member States on the other hand can play different games, sometimes playing the game of national law, sometimes the game of EU law. In the latter 61 See further Besselink, op. cit. supra note 43; Dutheil de la Rochere, Challenges for the protection of fundamental rights in the EU at the time of the entry into force of the Lisbon Treaty, 33 Fordham International Law Journal (2010), pp Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v. Netherlands Inland Revenue Administration, [1963] ECR Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Germany and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others, [1996] ECR I-1029, para Case C-352/98 P, Laboratoires pharmaceutiques Bergaderm SA and Goupil v. Commission, [2000] ECR I-5291, para See e.g. Case 4/73, Nold v. Commission, [1974] ECR 491, para 13, where the ECJ declared fundamental rights to take precedence in a case of conflict with other EU measures. 66 As demonstrated for example by Art. 6(1) TEU. 13

14 situation they will be bound by the same rules (fundamental rights) as the Union, being regarded as de facto extensions of the Union on the national level whenever their action is founded upon EU law or when they restrict existing EU rights or freedoms. This underlying idea explains why the ECJ has included mandatory requirements in the sphere protected by fundamental rights. While Besselink, among others, has argued that the use of mandatory requirements is a question of whether a national measures is within the scope of EU law, and therefore should not be subjected to fundamental rights review, 67 others have noted that in both cases of express derogations and cases of mandatory requirements a prima facie breach of Union law has occurred, thus meriting examination from a fundamental rights perspective. 68 To use our language, in both cases the Member State is clearly playing the game of EU law, interacting with existing Union rights and freedoms, and must therefore obey the rules of the game. The requirements posed on the Member States regarding fundamental rights do not have to be explained from a moral perspective, 69 it is a question of legal systematics: because the Union is bound by fundamental rights the Member States are bound as well whenever they play the game of EU law. The idea of actor equivalence explains the extension of the scope of application of fundamental rights vis-à-vis the Member States, but also the limits. As soon as the action of the Member States can be separated from the Union, as soon as the action is not founded upon or restricts Union law, the measure will be beyond the scope of fundamental rights review. To return to our analogy, the Member States are in those situations playing a different game. The legal literature has pointed to situations falling outside the scope of fundamental rights and criticized the ECJ for making artificial differences between situations. For example, Toth argues that the fact that a national measure might be inside or outside the scope of fundamental rights solely depending on whether a connection can be made with another aspect of Union law is illogical. 70 However, we argue that there is nothing artificial about the distinction. The connection with "another" aspect of EU law is in fact vital, since the protection of fundamental rights is not the purpose of the EU law game, but rather the rules according to which the EU law game must be played. A number of cases illustrate this idea. In Maurin 71 a French citizen was charged with selling food products after the expiry of the use-by date, thus 67 Besselink, op. cit. supra note Weiler, op. cit. supra note 47, pp ; Lenaerts, Fundamental rights in the European Union, 25(6) EL Rev (2000), , at pp Cf. Lang, The Sphere in which Member States are obliged to comply with the general principles of law and community fundamental rights principles, 91(2) Legal Issues of European Integration (1992), p. 28, who identifies several reasons for why the Member States are bound by fundamental rights. 70 Toth, Human Rights as General Principles of Law, in the Past and in the Future, in Bernitz and Nergelius (Eds.), General Principles of European Community Law (Kluwer Law International, 2000), pp , at pp Case C-144/95, Criminal proceedings against Maurin, [1996] ECR I

15 violating French legislation on the labeling and presentation of food products. 72 Mr. Maurin argued that the proceedings had violated fundamental rights, such as the rights of the defense. 73 In answer to a request for a preliminary ruling, the ECJ observed that Directive 79/112 concerning labeling, presentation and advertising of foodstuffs 74 did not cover the specific issue of sale after use-by date, and that the situation thus fell outside the scope of EU law. 75 In other words, the French action was not an extension of the Union and fundamental rights therefore no longer applied. Similarly, in Kremzov, 76 an Austrian citizen had been sentenced to imprisonment for life and argued violations of fundamental rights in the criminal proceedings. 77 He argued that the ECJ should examine violations of his fundamental rights, as he was a Union citizen and had the right to free movement. 78 The ECJ observed that Austria was not restricting the right to free movement, as Kremzow's possibility to use the free movement was purely hypothetical 79 and that the relevant Austrian criminal legislation was not connected to the implementation of EU law. 80 Consequently, the situation did not fall within the scope of application of fundamental rights. 81 The fact that the distinction itself is not artificial does obviously not exclude the possibility of the ECJ "tampering" with the borders in extreme cases. The well-known Grogan case 82 is an example. It has been argued that the conclusion in Grogan that the situation fell outside the scope of EU law was highly convenient for the Court, which thereby avoided a very difficult and politically sensitive review of Irish legislation, as well as legally questionable. 83 While this argument clearly has merit, the potential fault lies with the execution of the system in Grogan, not with the system per se. As long as the Union has no inherent and independent power in the area fundamental rights will remain rules of the game, binding the EU and the Member States when they act as an extension of the Union. 72 Ibid., para Ibid., para Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer, O.J. L 33, , Maurin, op. cit. supra note 71, paras Case C-299/95, Kremzow v. Austria, [1997] ECR I Ibid., paras Ibid., paras Ibid., para Ibid., para Ibid., para See discussion supra Part III.C. 83 Tridimas, op. cit. supra note 53, pp

16 IV. The Idea of a Europe Without Borders: The General Principle of Non- Discrimination on Grounds of Nationality Not to be subjected to discriminatory treatment based on nationality is arguably the most essential aspect of the fundamental freedoms. However, only economic actors fall within the scope of those rights. 84 Those specific prohibitions against discrimination on grounds of nationality are therefore supplemented by Article 18 TFEU that functions as a lex generalis and applies to situations that fall outside the scope of the former. 85 Article 18 s scope is however also limited in certain regards. Unlike previously discussed Treaty provisions, Article 18 TFEU contains no specific limitation of the personal scope which is therefore the same as the general personal scope of EU law, Union citizens. 86 More significantly, it follows explicitly from Article 18 TFEU that the provision only catches situations that fall within the scope of application of the Treaties, and its scope is thus connected to the scope of the Treaties. But what does that mean? Does the scope of application of the Treaties mean the same as the the scope of Union law as interpreted in case law concerning fundamental freedoms or in case law concerning fundamental rights? The Court s interpretation of Article 18 s scope suggests that it is an extended hybrid of both ideas. First, the Court of Justice has applied the provision to situations related to the internal market but where no specific provision against discrimination applied. An example of this is Cowan where the ECJ held that Article 18 prevents a Member State from denying victim compensation to a tourist from another Member State when it would have awarded such compensation to its citizens and permanent residents. Mr. Cowan s situation fell within the scope of application of the Treaties for the purpose of Article 18 as he was exercising his right to free movement of services by being a tourist and the protection of that person from harm in the Member State in question, on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement. 87 That Mr. Cowan s and similar situations fall within the scope of Article 18 can thus be explained by the idea of the internal market. In such situations, Article 18 extends the right of non-discrimination on grounds of nationality to include non-economic actors that fall outside the scope of the fundamental freedoms but that are nevertheless relevant to the internal market. Second, Article 18 TFEU also applies to national measures that in other ways are capable of affecting the exercise of a fundamental freedom. The ECJ has in 84 See supra Part II.A. 85 See e.g. Case 305/87, Commission v. Greece, [1989] ECR I-1461, para 13; Case C-379/92, Criminal proceedings against Peralta, [1994] ECR I-3453, para 18; Lehtonen, op. cit. supra note 23, para Art. 20(2) TFEU. Thus, non-eu citizens cannot rely on Art. 18 TFEU if discriminated on grounds of nationality. Case C-291/09, Francesco Guarnieri & Cie v. Vandevelde Eddy VOF, judgment of 7 April 2011, nyr, paras See also supra Part I. 87 Case 186/87, Cowan v. Trésor public, [1989] ECR 195, paras , para 17 qouted. The ECJ does not explicitly address why Mr. Cowan could not rely on the more specific right not to be discriminated against when exercising the free movement of services laid down in Art. 56 TFEU. 16